New Zealand Security Intelligence Service Amendment Bill

I understand that there might not be any standard over and above what is set out in those laws that has to be recognised or complied with by the Security Intelligence Service when it performs its functions under this Act, but I do not think we need subsection (2) to state that. That would be the law anyway. All that subsection (1) states is that unless there is some modification in relation to national security by some other enactment, then those other enactments apply anyway. So I do not understand why we need subsection (2), and therefore I am confused by what it means. Does it mean that no duties arise under that Act? I thought that was one way we might read it. I find it a surprising and confusing subsection, which I think makes this legislation harder to interpret rather than easier.

I suggest to the Minister that he seek advice from officials as to whether we are making things worse by that rather than better. If particular duties arise under those statutes, well, they are not abrogated anyway. I presume that they are not intended to be abrogated by new subsection (2). I am left confused as to what that subsection means. I do not think it adds anything to the meaning of the statute, but, rather, it confuses things.

I would be grateful if the Minister in the chair addresses that issue when he has a chance to consider it. It may well be that the officials, under their invisibility cloaks, are considering this in some other part of the precinct, and maybe they need to come back to him—

Parker Hon DAVID PARKER Link to this

Send a pigeon.

I do not think many pigeons are left in the Security Intelligence Service—

Parker Hon DAVID PARKER Link to this

I thought Mr Finlayson kept pigeons.

I am sure he has a cloth cap but I do not know whether he keeps pigeons. But it is a serious issue. I agree that we should insert those principles, but I do not understand what subsection (2) does. If it does not impose particular duties, does that imply that subsection (1) implies general duties? If it applies general duties rather than particular duties, what are they? I do not know. Again, I say to the Minister that if it does not require particular duties, does it propose general duties, and, if they are general duties, what are they? That seems to me to be undesirable.

I would have thought we wanted just the obligation for them to act in accordance with New Zealand law except to the extent that they are modified by another enactment. That is all it should say. Otherwise we are left with an uncertainty as to what particular duties under those Acts do or do not apply. Even if that is not a proper concern, do general duties arise from these preceding clauses that are broader than statutory duties that arise under the New Zealand laws to which subsection (1)(c)(i) refers to?

In general, Labour members are convinced that the other changes made by Part 1 to the powers of the Security Intelligence Service are necessary. It was pointed out to the committee that various powers are held by other arms of the State like the police relating to newer technologies that have been developed since the original Act was passed some 40 years ago—the 1969 Act—and that technological advances since that date needed to be properly regulated. Indeed, if it is a bit like the police then some powers of the Security Intelligence Service would be unregulated, because they were not included in the Act, and therefore they were not prohibited from being used, but under this legislation they will now be regulated. I think that regulation is appropriate. I am sure that other members, on behalf of Labour, will have some other questions relating to the wording of that provision. I would not mind clarifying it for myself.

Parker Hon David Parker Link to this

One of the problems we have with discussing whether the New Zealand Security Intelligence Service Amendment Bill is appropriate in respect of the particular issues raised by previous speaker, David Parker, is that the SIS is such an opaque organisation and, whatever legislation we pass here, it is very hard to tell whether the SIS will abide by it, because we do not have the means of making this organisation accountable to Parliament in the way we have with other Government agencies. Often when Ministers come into this House they trumpet the achievements of their organisation and the importance of legislation to improve the functioning of their organisation, but in the case of the SIS I cannot think of one achievement it can claim credit for over many, many years.

Preventing thermonuclear war.

Mallard Hon Trevor Mallard Link to this

Well, it is interesting that back in November 2009 there was a request from the Security Intelligence Service to vice-chancellors of different universities for those vice-chancellors and their minions to alert the SIS to any illicit science relating to problems of weapons of mass destruction. That caused a bit of consternation amongst the academic community because, first, they were not aware of any people at Massey University who were running around producing weapons of mass destruction, and, second, as the President of the Tertiary Education Union, Dr Tom Ryan, said, they do have something called academic freedom, including freedom from having State agencies breathing down their necks. According to Dr Ryan, that request would undermine the legislative autonomy of institutions, including the guarantee of academic freedom. So that was another problem that the SIS had.

If we look at more recent examples, we see the example of Stephen Wilce, who was the head of the Defence Technology Agency. The SIS did a vet on him. He was probably one of the very few people in New Zealand who would have any real Government secrets. We are a pretty open society and we have a pretty open Government. We are involved in the estimates process at the moment. We are getting all this stuff from each department. We know pretty much what is going on, including in defence itself, but possibly the head of the Defence Technology Agency might have one or two secrets. He would perhaps be the one person amongst the thousands they vet each year whom they should have a close look at, but the SIS fell down on the job. Stephen Wilce was a bit of a fantasist and should not have been in the job in the first place.

What about Devon Biggs? Do you remember Devon?

Mallard Hon Trevor Mallard Link to this

Devon Biggs was a student either at Auckland or Victoria University—

Victoria.

He was a student at Victoria University who many years ago, and along with other students and lecturers at Victoria University, breached his academic freedom and the right to dissent against the Government of the day. He was an SIS agent on campus dedicated to watching those great subversive students who were protesting the Viet Nam War, apartheid, and the like. There was a huge furore about that, and eventually an accommodation was reached with the universities that they would not put SIS agents on campus. That was not really a feather in the cap of the SIS.

Then the Ahmed Zaoui case came to public attention. The SIS claimed this as a great victory for either 4 or 6 years, I have forgotten which, before it had to admit that this chap was a legitimate democratic dissident from Algeria who is now well settled in New Zealand and no one considers him a terrorist or a dangerous person at all. The SIS completely failed in that case and caused great heartache to Ahmed Zaoui, who was in solitary confinement for a long time, in and out of prison, and finally he got his family here and is now settled in Palmerston North and running a kebab stall. That was a great failure, but even more of a failure was the fact that even though the SIS had access to all the information on Ahmed Zaoui, it did not see the light for so many years. The special advocate for Ahmed Zaoui, Stuart Grieve, made a submission to the Transport and Industrial Relations Committee on the Immigration Bill. He looked at some of the material that was held against Ahmed Zaoui and he said that, for a start, most of the so-called secret material was in the public domain—about 90 percent of it—so it was not really secret material. It was of such low quality as to be virtually meaningless.

Tisch The CHAIRPERSON (Lindsay Tisch) Link to this

I ask the member to refer to Part 1.

Yes, and this is related to Part 1.

Tisch The CHAIRPERSON (Lindsay Tisch) Link to this

I am on my feet. Although it may have some relevance, you need to relate it back so that we know which part of Part 1 we should refer to. I ask the member to continue and bring in Part 1.

It is relevant, particularly to the debate started up by David Parker on clause 5A where it talks about the particular duties of the Security Intelligence Service and the need for the agency to operate “in accordance with New Zealand law and all human rights standards …”. I am explaining that in the particular case of Ahmed Zaoui human rights were not properly dealt with by the Security Intelligence Service. It was sort of a failure of the agency to abide by what one would think were the proper human rights standards and proper scrutiny. That issue came into public attention, and it turned out to be a failure for the Security Intelligence Service.

There was another big case where the Security Intelligence Service invaded the home of Aziz Choudry. That was a big case in 1996 and, again, he was a legitimate political activist who was critical of free trade and investment agreements in the main. The Security Intelligence Service got into a lot of trouble because it broke the law by invading his home, when at that point the Security Intelligence Service did not have legal powers to break into people’s homes. In the end, after a long effort to try to get the material on the case out of the Security Intelligence Service—which was a huge struggle—the judge eventually ruled against the Security Intelligence Service. In effect, I think Mr Choudry may have received some compensation out of it as well, but I do not have that detail in my mind.

We can go back to an earlier case with Dr William Ball Sutch, who was a leading civil servant in our fine nation, a great writer, a historian, and everything else. He was found at a trial to be not guilty of espionage or something like that in terms of the charge. So the Security Intelligence Service failed in that case. There is all this history of failures, but I cannot think of one single success of the Security Intelligence Service. Perhaps in this debate the Minister can illustrate one single success of the Security Intelligence Service in order to justify its existence and all the legislation we are trying to put around it.

Some intelligence agencies have the odd success overseas, like tracking down Osama bin Laden or whatever it might be. But I cannot think of one success for our Security Intelligence Service, so that asks the question of whether we need a Security Intelligence Service or whether the police can deal with criminality, including politically motivated criminality, instead of this secret agency, which is pretty unaccountable. We do not even know—

Tisch The CHAIRPERSON (Lindsay Tisch) Link to this

I again bring to your attention that this part is not specifically about the Security Intelligence Service. I asked you to relate the examples you were giving back to parts of the bill. If we look at the purpose clause, we see that it is not all about the SIS; it is about the authority given to it to use modern technology in its performance. That is part of it. I ask you to tie what you are saying back into the importance of the bill.

I take your point, and we are giving access to this modern, much more intrusive technology, which is more intrusive on people’s privacy. I think that is an additional reason why we have to make sure that the Security Intelligence Service upholds the human rights standards referred to in Part 1. I and the Green Party are not confident that the Security Intelligence Service will match up with those standards. The record of the Security Intelligence Service has to be taken into account. Should we give more intrusive powers to an agency that does not have a track record of success, yet is getting more and more money and more and more agents but still does not seem to be achieving anything? It is geared to catching all of these terrorists, but it has not tracked one down in the whole last decade in New Zealand.

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I enjoyed that contribution by Mr Locke. I half expected some kind of rant about Philby, Burgess, and Maclean at one stage, but there we are. Can I just say something about the contribution of Mr Parker, who spoke about new section 4AAA(2) inserted by clause 5A. My understanding about the way this clause was drafted was that the Human Rights Commission made a submission, and then Dr Norman and Mr Goff got together and refashioned it, and that is how it emerged. But I am not sure whether Dr Norman and Mr Goff actually dealt with subsection (2). Where I think subsection (2) comes from is that it is modelled on section 11 of the Policing Act 2008. Subpart 1 of that legislation sets out the principles and functions of the police and the roles of others acknowledged. Then section 11 states: “Nothing in sections 8 to 10—(a) imposes particular duties on, or gives particular powers, to the Police, the Commissioner … or (b) affects the powers, functions or duties of any agency”. So I think we get subsection (2) from section 11 of the Policing Act. The effect of it is that it does not impose new duties or give new powers to the Security Intelligence Service, but it provides explicit recognition of those matters that should guide the working of the Security Intelligence Service. I suppose it is more in the nature of belt and braces, but I think that is the legislative history of how we get this particular formulation.

Mallard Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I am speaking as someone who, as some members—at least Sir Roger and one or two others—will remember, has had more than a passing acquaintance with the SIS and its legislation over a period of years. I would like to focus on clause 5A, “New section 4AAA inserted”, which goes to the discharge of the operational functions of the SIS and to the integrity and professionalism of that organisation. I say that as someone who I am sure, as with Keith Locke who spoke before me, has managed to fail one of its vettings. I knew I had failed the vetting because after I had failed it, when I was working as a window cleaner when I was a student, I was accompanied while I was in the old Ministry of Defence building.

Part of my responsibility was to clean the windows of what was probably the predecessor of the GCSB, the Government Communications Security Bureau, which sat in there. Because of the fact that I had failed the vetting, I was constantly accompanied by a pistol-wearing guard to make sure I did not look at the papers and to make sure I looked at the window and not at the desks, which were cleared for the period I cleaned the windows inside and out.

I should say that the most interesting part was that the most locked-up room, the most secure room, had a number of books in it. This was during the Viet Nam War. One could tell what the organisation was working on from the books. They were about the economic aspects of the war against Viet Nam. Lipsky was the author of the Economics 101 textbook at that stage. It was the biggest book on the bookshelf of the most secret room within the Ministry of Defence at the time. The idea that it had to lock that book away, when it was readily available to everyone who was doing Economics 101 at the university, was an indication to me that maybe at the time the professionalism of the organisations that were involved in security matters was not quite at its peak.

Then, as I was often reminded during the first 6 or 7 years of my parliamentary career by the Rt Hon Sir Robert Muldoon, at one stage I—[Interruption] I thank Steve Chadwick for reminding me of the exact words he used to use. He described me as a long-haired activist when I was protesting against the lack of integrity and professionalism of the SIS. In fact, I was arrested in the Chamber of the House and appeared in court and in the Supreme Court.

Tisch The CHAIRPERSON (Lindsay Tisch) Link to this

History lessons are all very well and we learn a lot from them, but 3 minutes have gone and I would like to hear how that relates to Part 1.

Parker Hon David Parker Link to this

The point I was getting to is that at the time I had very serious doubts about the integrity and professionalism of the New Zealand SIS, I think it is fair to say, under the guidance of Brigadier Gilbert, who was the director at the time. There appeared to be a requirement to have a white South African accent in order to be employed. The SIS agents were fairly easy to identify—

And a moustache.

And a moustache and sometimes a funny little forelock thing. The agents were relatively easy to identify because of the lack of integrity and certainly the lack of professionalism in their selection at the time. As a result of that there were widespread protests against the 1977 legislation.

Since that time I have had the ability to observe matters to do with the SIS—not in any detail whatsoever, apart from a relatively short time when I sat for a year or so on the Cabinet committee that dealt with international economic and foreign affairs and security matters. At that stage I became aware of some matters around the edge. I know that the biggest check on the integrity, professionalism, and discharge of the functions is the Minister who is responsible for the SIS. I often sat outside the offices of the Rt Hon David Lange, Sir Geoffrey Palmer, and subsequently Helen Clark, originally as a whip and then as a Minister, when there were unscheduled meetings with the director of the SIS. I presume that because the meetings were unscheduled they were to do with a matter of immediate security. Often, it would have been a matter of warrants.

The assurance I can give the Committee is that those meetings were never short. I know that because I waited outside. It is fair to say that the directors of the SIS—there were three of them over the years, I think—whom I saw come out of those meetings did not always look particularly comfortable. I think it is fair to say that the interrogation by those Prime Ministers of those directors about their duties was intensive and that they used to go right down into detail. It is my understanding that David Lange—I do not know this of any of the others—used to go down to the SIS building and examine the files himself to make sure he was getting the appropriate story.

I think there is a weakness in the legislation, but I am not sure what the solution is. The weakness in it is that it requires a Prime Minister who is prepared to read and to cross-examine.

Well, that rules out the current one.

Chris Auchinvole Link to this

There could well be a problem, but I think that when we are having a discussion in principle it is important to identify that. Despite my history of failing vettings and of being arrested I know that we have to have such an organisation. We know we must have such an organisation. It cannot—

It’s a dilemma for you.

Chris Auchinvole Link to this

No, no, it is not a dilemma, at all. The SIS cannot operate in the open. It is clear that it cannot operate in the open. If a security intelligence service told everyone what it was doing, there would be no point in having one.

The idea that the SIS does not look at modern electronic communications is absurd. I would not hesitate to say that I am pretty sure it is looking at this stuff already. It might look at it and use it not for evidence but for building up a case to get a different sort of warrant. I think at least in collaboration with the police—if not independently—it is doing it now. I think it would be foolish if it was not doing it now. The idea that modern methods of communication cannot be intercepted and that modern tools cannot be used against people who, at the extreme, could be terrorists within New Zealand is just not acceptable. We have to have an organisation that has the tools.

Part 1 of the bill deals with the changes to include electronic tracking, for example. We know that the police have had the legal ability to do electronic tracking for some time. I do not know whether it is much less common or much less likely that the SIS uses it, but the consequences of it not doing so could be much bigger than for the sorts of crimes the police are working on. Hopefully, it never happens, but, in my opinion, the SIS must have the powers to—

What about the window cleaners? Are they still a risk?

Mallard Hon Trevor Mallard Link to this

It is fair to say that Confessions of a Window Cleaner was an interesting movie, but I think we had probably better not go into the things that window cleaners have seen while they were window cleaning. It is fair to say that at the James Cook Hotel, where I also worked, there were some particularly interesting occurrences that one could see as one was window cleaning. Of course, I shut my eyes immediately rather than carefully examine what was occurring during the daytime.

Labour supports Part 1. It is a regret that it is necessary to have the SIS in this country, but it is necessary. We cannot have it any other way for it to be effective.

Goudie SANDRA GOUDIE (National—Coromandel) Link to this

I move, That the question be now put.

Shearer DAVID SHEARER (Labour—Mt Albert) Link to this

I am pleased to take a call on this important bill, the New Zealand Security Intelligence Service Amendment Bill. As two of the earlier speakers were arrested and put under surveillance by the SIS, I feel somewhat left out. I do not think I have such a colourful past as they do—[ Interruption]—that is true. Maybe I need to get my file. I know that Keith Locke got his file, and it was about a foot thick, I remember him once saying.

It was nearly as thick as Gavin Briggs.

Shearer DAVID SHEARER Link to this

That is right. But, seriously, this is important legislation. There were, as I understand it, 23 different written submissions that covered mainly Part 1 of the bill. As others before me have said, the fact that the submissions had to be heard in secret was regrettable. Although there is some interest in this bill and we could have looked at some of the submissions independently in secret, I think for the most part the submitters did not feel that their submissions needed to be heard in secret, nor did they want them to be. They wanted their submissions to be heard in the public arena. With that prelude, I will move into some of the issues.

I will start by quoting Sir Geoffrey Palmer, whom the Attorney General quoted earlier in either the first or second reading. I think his words summarise the essence and the purpose of Part 1. He was also a Minister in charge of the NZ Security Intelligence Service. He 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 freedom such as privacy, freedom from the kind of genuinely subversive activity which 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.” I thought that was a particularly relevant quote that needs to be looked at in balance with the protection of the right to privacy, the powers that might impinge on people’s privacy, and, certainly, the powers that might impinge on the basic human rights that govern our country.

Trevor Mallard mentioned at the very end of his contribution that this bill basically brings the New Zealand Security Intelligence Service Act up to date, so that it has the same sort of ability to look at powers of surveillance in the 21st century. It has been 42 years since that Act was properly updated. The Government, although I am not sure whether this is particularly relevant, would like to get this bill through before the Rugby World Cup. I do not quite understand the reason for the urgency. The Security Intelligence Service is well and truly in place and is working well, so I do not know whether this legislation will make much difference to it. Nevertheless, given the fact that the bill is to go through the House by then, perhaps the Minister might want to comment on any difference that it would make if this legislation did not come up before the Rugby World Cup.

The submissions on this part focused on four general areas. The first was the surveillance powers of the SIS, and that includes the electronic surveillance and tracking capabilities, which I just mentioned. The second was the protection from liability of employees and others who assist in the exercise of warrants. Clearly, that is necessary, as the SIS relies on a number of other people and individuals in the exercise of its work. The third area was the delegation of powers, including the power to exercise warrants, and the absence of a requirement to name all of the people who assist. Again, I think it is pretty self-evident why that is the case: obviously, people assisting the SIS could be compromised in the actions that they assist with. The last general area was that of oversight and accountability, including issues of human rights and the role of the Inspector-General of Intelligence and Security.

I was pleased that the Intelligence and Security Committee made a number of amendments to the bill, somewhat in response to the four areas that submitters brought up. First of all, there was an amendment regarding the principles. David Parker spoke to this amendment. Section 4AAA, inserted by clause 5A, has been brought into the bill to, in a sense, highlight the work of the Security Intelligence Service. It runs through what the Security Intelligence Service is trying to do when performing its functions. It lists that in the three paragraphs of section 4AAA(1), which state that the SIS: “(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:” as part of our obligations, and “(c) acts—(i) in accordance with New Zealand law and all human rights standards”—and this is one of the things that the Human Rights Commission insisted went in as part of its contribution to the select committee—“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.”

Although one would hope that those principles were inherent within the legislation or the actions of the SIS generally, I think it adds to the bill to have them explicitly stated. It will give more confidence, perhaps, to those people who have some nervousness about this legislation in terms of the way the SIS will carry out its work in future.

The other aspect I will touch on is the destruction of irrelevant records. This is covered in clause 8A, which was also brought into the legislation at the select committee. Once again, the idea is that information that is collected but that is not particularly relevant to a case would be destroyed once it was seen to be not relevant. New subsection (2A) of section 4G, which is amended by clause 8A, states: “As soon as practicable after the expiry of an intelligence warrant that authorises electronic tracking, the Director must ensure that any records resulting from the electronic tracking undertaken under that warrant are destroyed, except to the extent that those records are relevant—”. In other words, a lot of information is likely to be gathered in an inquiry, and all of it that is not relevant should be destroyed. The question I have—again, for the Minister—concerns how we are to ensure that the information has been destroyed. How will we know that it has been destroyed? What sorts of safeguards could we ask for, as a Parliament, to make sure that it happens? A provision on that might be in the legislation; it might already be well covered. But I would welcome the Minister’s intervention on that question.

My last point is about mistaken identity—another area where the bill was modified at the select committee. This is in clause 7, which amends section 4B by adding a number of subsections, including: “(4) The Minister or, as the case requires, the Minister and the Commissioner must consider whether to include conditions in an intelligence warrant to minimise any risk …”.

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

I move, That the question be now put.

One of the issues that Part 1 of the New Zealand Security Intelligence Service Amendment Bill addresses is updating the powers of the Security Intelligence Service in respect of new electronic technologies. The one I will spend a moment on is the inclusion of the power for electronic tracking. Clause 5 of the bill states: “ ‘electronic tracking’ means the use of electronic means for the purpose of ascertaining the location, or tracking the movement, of a person or thing”.

I am interested in the opinion of the Minister in the chair, the Attorney-General, as to whether he agrees with the Law Commission that in terms of the degree of intrusion upon civil liberties, we should be less concerned about electronic tracking than about surveillance techniques like cameras and recording devices. I sat on the Justice and Electoral Committee that considered the Search and Surveillance Bill, and we heard a submission presented by Warren Young on behalf of the Law Commission. He expressed the view that as a society we should be less concerned about electronic tracking devices than we should be about other surveillance techniques, in that electronic tracking devices are less intrusive into the personal life or the personal business of the person under surveillance. That seemed right to me, but I was not completely convinced, in that if, for example, a person was regularly going to the place of another person who was not their wife, then electronic tracking of that person would be intrusive into the details of that person’s personal life in a way that might concern them, given that they might think they had a right to live their life privately.

That is a little issue that I would not mind some clarification from the Minister on. If there is a difference in the intrusiveness of different methods of search and surveillance or different techniques, then maybe there is a need to have some different threshold applying to the different sorts of surveillance techniques that might be utilised. It may well be that the Minister thinks that if the police have these powers, then the Security Intelligence Service should be qualified to have them too, and that the proper oversight of the use or misuse of those powers is provided for by the Commissioner of Security Warrants and the Prime Minister.

I would be interested in the Attorney-General’s view on that also, because it seems to me that we are lucky in New Zealand that we have a trustworthy judiciary. In fact, I do not know of another jurisdiction in the world that has a more trustworthy judiciary than New Zealand. That is not to say that overseas countries’ judiciaries are not trustworthy, but I am very trusting of the independence of our higher courts especially. I think we have a tradition of impartiality, lack of bias, and thoughtfulness amongst our higher judicial officers in New Zealand that is a very, very important part of the constitutional safeguard of our civil liberties.

For example, I prefer New Zealand’s system to the American system where there is more political involvement in the appointment of judges in an overtly political way. I know that in the end someone has to appoint a judge, and in the end it has to be done by another branch of Government, and therefore it is generally a politician—and in our case the Attorney-General—but we have a strong tradition in New Zealand of making non-partisan appointments to courts. As a consequence, we have non-partisan courts, generally, to the extent that that is possible, and we therefore have the benefit of a long tradition of judicial independence and a judiciary that we can rightly trust, I think, to be guardians of civil liberties and, therefore, guardians against inappropriate use of Security Intelligence Service powers. I would like to hear from the Minister whether he agrees that the controls we have that underlie the way in which we prevent the Security Intelligence Service from misusing the powers we have—

I will follow on from the previous speech, given by David Parker, who referred to two quite intrusive powers in the New Zealand Security Intelligence Service Amendment Bill. The tracking power—the ability to track people around the place—is particularly mentioned in this bill. When we compare this bill with the Search and Surveillance Bill, which has been discussed in the Justice and Electoral Committee, we see that there is a higher threshold for video surveillance in private homes. It can be authorised only in relation to crimes with several years’ jail as punishment; I think 7 years is the threshold. It is very intrusive to put a covert video camera in someone’s bedroom or living room; it intrudes very much on people’s privacy and a family’s privacy.

There seems to be a lower threshold in the Search and Surveillance Bill for tracking, but tracking can be very intrusive too. It is true that the police already have that power. It is true that it is not actually outlawed for people to track other people. In fact, I get emails saying that for US$200 I can buy a very small device that can be attached to my partner’s car to follow them around and see whether they are cheating on me, or to see whether my kids are going astray. They can be tracked. One just tracks on one’s computer where the global positioning system location is at a particular time. It is very intrusive technology and we should not let agencies of the State have it too easily. That is one of the Green Party’s concerns.

There is also the problem with the warrants. Under this new amended legislation there will be less control over the warrants, particularly with regard to people being asked to assist the SIS in the application of those warrants. Previously the Minister in charge of the NZ Security Intelligence Service had to be involved in any changes to the warrants. There have not been many changes. I think there were about five in the last financial year, or a maximum of five over the last 3 calendar years; there have not been many changes. But now not only will the Minister not be involved but the SIS director can delegate to somebody down the chain the changes in the warrants and who will be asked to assist. This means we have less and less control over the whole warrant system.

This question of who should or could be requested to help the SIS is quite contentious, and the Council of Trade Unions made quite an extensive submission on that point. It was worried about workers in workplaces being required to assist the SIS by spying on their workmates without even telling their employers. There is not even provision in the legislation for the employer to be told, so the employer could get upset that the workers are delegated by the SIS to spy on an employer, to spy on another worker, etc. A whole lot of industrial issues start to come into the whole thing as well.

There is a worsening or loosening of the legislation in terms of who can be asked to assist with the interception warrants, the tracking, or whatever it might happen to be. It can now include organisations as well as individuals, so it is a very difficult area. Of course, the people in the gun are for the most part those working in telecommunications and for internet service providers. Those working for internet service providers, in particular, do not want to breach the privacy of the people they sign up as clients, who are paying them good money each month to have email or some form of internet service. They do not want to get mixed up in that. Under this legislation it will not even be the Minister or the director involved; it will be some minion in the SIS chasing people around and saying they have to spy on a person.

I come back to my original point: where are the enemies, where are the terrorists, and where are the really bad people that mean that we need to give these extensive powers to the SIS? We have a police force that operates effectively. It can and does operate in secret, in that it does not tell criminals, whether they are ordinary criminals or politically motivated criminals, what is going on.

Bridges SIMON BRIDGES (National—Tauranga) Link to this

I move, That the question be now put.

Motion agreed to.

Link to this

A party vote was called for on the question,

That Part 1 be agreed to.

Ayes 110

Noes 10

Green Party 9
Independent 1 (Carter C)

Part 1 agreed to.

Part 2 Amendments to Crimes Act 1961

Part 2 covers amendments to the Crimes Act 1961 that are made by this New Zealand Security Intelligence Service Amendment Bill. The difficulty we have in this Committee at this part of the debate is that the commentary on the bill says nothing about Part 2. Therefore, when trying to interpret Part 2, we are left to our own devices. It seems to me from the changes brought about by this part that we are amending a provision in the Crimes Act by omitting a phrase, “sections 249 and 250”, and substituting in its place the phrase “sections 249 to 252”. In other words, by this amendment we are omitting an additional two clauses from the Crimes Act.

My first question for the Minister in the chair, the Attorney-General, is whether we are repealing those sections or just saying that those sections do not apply to actions by the Security Intelligence Service; if so, what are we changing in practice? It appears that at least part of this relates to accessing computer systems without an authorisation, and in that regard we repealing section 252(3). I presume that we are repealing that for all purposes, not just for the purposes of the Security Intelligence Service. Hence I am a little surprised in that, just from an initial reading of this part of the New Zealand Security Intelligence Service Amendment Bill, I cannot see why we would be repealing provisions relating to the Crimes Act. It is possible, I suppose, that there were provisions relating to that Act, and that section 252(3) of the Crimes Act might have had a specific provision exempting the Security Intelligence Service from that particular provision of the Act.

If we have extended the number of sections that are omitted to include section 252(3), then the omission of those sections might mean that there is no need now to have the special provisions in sections 253 and 254, which are accordingly repealed. The Minister, I see, has the statute in front of him, and might be able to inform—

Parker Hon DAVID PARKER Link to this

He has memorised the Act.

He may already know. The Attorney-General is very learned in matters of law. It may well be that he already knows off by heart the provisions of sections 249 to 252 of the Crimes Act, and whether those sections are of particular application to the Security Intelligence Service only or whether they have wider application. I look forward to the Minister clarifying that question.

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

Sections 248 through to 254 of the Crimes Act were inserted by the Crimes Amendment Act of 2003, and they deal with crimes involving computers. The purpose of Part 2 of the New Zealand Security Intelligence Service Amendment Bill is to give effect to certain amendments to the Crimes Act, and clause 17 amends section 248 of the Crimes Act. It inserts a definition of “authorisation”, which is currently not there, and which is defined as including “an authorisation conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process”. So that is what happens there; that definition of authorisation is inserted. Clause 18 repeals section 252(3) of the Crimes Act, which is rendered superfluous because of the definition of “authorisation” included in clause 17 of the bill. Sections 253 and 254 of the Crimes Act are repealed. Those sections currently give both the New Zealand Security Intelligence Service, in the case of section 253, and the Government Communications Security Bureau, in the case of section 254, a qualified exemption from the offence of accessing computer systems without authorisation. Those sections have become unnecessary in view of the definition of “authorisation” that will be inserted by clause 17.

I thank the Minister in the chair, Minister Finlayson, for that explanation in relation to Part 2 of the New Zealand Security Intelligence Service Amendment Bill, and David Parker for drawing our attention to the lack of clarity in it. I will also address those particular clauses, because they relate to the question of computer access. That has been quite a controversial issue, both in the original law back in 2003, the Crimes Amendment Act, which the Attorney-General referred to, which granted some powers of computer access to Government agencies, including the Security Intelligence Service, and also in relation to the Search and Surveillance Bill, which gives a range of powers to Government agencies under different Acts, including, I think, the New Zealand Security Intelligence Service Act. This provision in Part 2 that relates to computer access is an attempt to tie it all together and streamline it, etc., but underneath it all is the more fundamental question of intrusive powers being given to the Security Intelligence Service in its relatively unaccountable state, compared with other agencies such as the police.

Computers have much information—I can speak for my own computer, and I am sure that other members will feel the same—given that a large proportion of one’s life, views, attitudes, and sometimes personal correspondence, is sitting on one’s computer. So to grant to an agency too readily the power to take a copy of what is on a person’s hard drive, to search it with key words, and all the rest of it, is a power that should not be given lightly. There have been submissions to select committees on this issue over the years. People get very upset at the intrusion this involves. The authorisation, although it has been streamlined here, under bills like this bill and the Search and Surveillance Bill can have a certain delegation, and it is not necessarily always a high-level, judicial person who will give that authorisation.

The other problem with this bill, and where this bill and this provision relate to the Search and Surveillance Bill, is that when searching, whether a building or a computer, a principle has been introduced that even though the search is being made on the basis of one crime, if evidence of another crime comes into what is called plain view, then that bit of evidence can be picked up. If there is enough evidence the charge can be proceeded with in relation to this other crime, which had not necessarily been mentioned in the original warrant. That has a particular problem when applied to computers, because a lot of things can come into plain view. People accidentally use certain words and word combinations to search for one thing, and a whole lot of other things come up, and some smart officer of the Security Intelligence Service or the police can sort of get what they want. They can look for evidence of a whole range of crimes not included in a warrant more easily, in terms of accessing a computer, than, possibly, if they were searching a person’s home—although there are ways of doing it if they are searching a person’s home. Police officers might walk into a home looking for a bit of stolen property, for example, and they might sort of know where that stolen property is, but they might forget to look in the particular place for a start. Instead they look everywhere else in the room or the house, and then end up at the place where they knew the piece of stolen property was really likely to be. In the meantime they have searched the whole building and tried to uncover information about, or evidence of, other crimes, if they are out to get that particular person, for example. There may be cases like that.

But my main point is that access to computers is a very, very difficult area, particularly if the person in question does not know what is going on. Under this legislation and the parallel legislation, the Search and Surveillance Bill, access to a computer can include not only the physical computer one operates from but other computers that are part of the network and various other email addresses. It can relate to trawling—you know, finding out what people are doing in their computer searches. Access can include a whole range of things.

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A party vote was called for on the question,

That Part 2 be agreed to.

Ayes 110

Noes 10

Green Party 9
Independent 1 (Carter C)

Part 2 agreed to.

Schedule

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A party vote was called for on the question,

That the schedule be agreed to.

Ayes 110

Noes 10

Green Party 9
Independent 1 (Carter C)

Schedule agreed to.

Clauses 1 and 2

I think that clauses 1 and 2 of the New Zealand Security Intelligence Service Amendment Bill are very relevant. The title is the New Zealand Security Intelligence Service Amendment Bill. Let us look at the title of the organisation, which is the New Zealand Security Intelligence Service. I have indicated in my previous contributions that there is a problem with the New Zealand Security Intelligence Service. In spite of the increased amount of money devoted to it—in the time I have been in Parliament I think its budget has gone from about $10 million a year to $40 million or more a year, and all sorts of staff have been added, such as translators and all kinds of people—it does not seem to have, in terms of the wording in the title, too much intelligence for making any progress or coming up with some achievements that we in Parliament can learn about and celebrate. I think that one use of the word “intelligence” is not particularly appropriate to the New Zealand Security Intelligence Service.

Also, there are no indications of what the New Zealand Security Intelligence Service has done for our security. We are always proud of the term “New Zealand” being in the title of any bill, as all of us are very patriotic New Zealanders. The problem is that the New Zealand Security Intelligence Service, because of its relative lack of independence internationally, is not upholding New Zealand’s good name and traditions in the way that some other Government agencies are.

If we look at the WikiLeaks documents we will see that the New Zealand Security Intelligence Service, although it resisted this course for some years, is now integrating its computer system with that of the United States intelligence agencies, such as the Department of Homeland Security, the FBI, and the CIA. In that sense we lose a bit of independence. There are not many nations in the world that link up their computer systems in the same way. We are reliant more and more on the American Government’s definitions of intelligence, who may or may not be an enemy, or who should be a prohibited immigrant, etc.

We know that, particularly from other WikiLeaks documents on the Guantanamo Bay detention centre, the American Government gets it wrong many, many times. When audits have been done of their databases, even Government audits themselves, they have found a very high error rate in databases in terms of who is a really bad person and who is not. We are probably, through this integration with the American intelligence system, detrimentally affecting the lives or the travel plans of many people unnecessarily. We do not have the statistics on that. They are a little hard to come by, by the very nature of the way these things work.

I do not think the title is necessarily appropriate. It is certainly an amendment bill; that part of the title is quite correct. Perhaps we should change the commencement date to further down the track. The bill comes into force on the day after the date on which it receives the Royal assent. I think it would be better if we put the commencement date further down the track—a year or two out—so that we can ponder whether this is appropriate legislation.

Improvements have taken place in this bill. It is good that the provisions are there, in terms of the section that was discussed earlier on human rights standards. It is good that the Government, the Government members of the Intelligence and Security Committee, and all members of the committee agreed to put in that provision. It was proposed by the Human Rights Commission in its submission. It is not quite in the form that the Human Rights Commission would like, but it is a step forward. It puts a little moral basis under the New Zealand Security Intelligence Service to abide by human rights.

At this stage I understand there is a slightly wider purview than we have in respect of other parts of the New Zealand Security Intelligence Service Amendment Bill. I will express why Labour thinks that overall this bill ought to proceed, and therefore the commencement date is appropriate. Sad though it may be, I think, to quote Winston Peters, “every Western democracy” has its own security and intelligence service. We might not like to think that there are elements in society that would do untoward things, but the reality is that virtually all countries protect themselves against those possibilities, and they do so on occasions through an organisation like the Security Intelligence Service.

We try to strike the balance between giving those organisations the powers they need to do their work and protecting citizens from intrusion on their civil liberties. In this instance, in New Zealand we do that through the oversight of the Prime Minister and the Commissioner of Security Warrants, who by tradition is a retired High Court judge, or in fact it might be by way of legislative mandate that the commissioner has to be a former High Court judge. I see the Attorney-General is nodding in that respect; he thinks it is.

That is how we achieve the appropriate balance between protecting our citizens from inappropriate intrusion or surveillance by the security apparatus and having that facility there for the protection of our way of life, so that it is less likely to be disturbed by people who have different values and have a different ambition. Although those people are rare, we have to accept that they exist in some parts of the world and that they could do damage to our way of life if they had their way. Those are the two interests that we try to balance, and I think this bill achieves that.

One of the problems with the Security Intelligence Service, as I have said on a few occasions, and this is reflected in the New Zealand Security Intelligence Service Amendment Bill, is that it is a rather unaccountable agency—probably the least accountable in our Government system.

One thing that is reinforced in this amendment bill is the exemption from any litigation of people helping the Security Intelligence Service in terms of warrants. It is true, as in any Government agency, that if one is obeying the instructions of one’s superiors in carrying out certain Government functions one should not be unnecessarily subject to litigation.

Sitting suspended from 6 p.m. to 7.30 p.m.