New Zealand Security Intelligence Service Amendment Bill, Crimes Amendment Bill (No 3)

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

That the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No 3) be now read a third time. This legislation makes select changes to the powers of the New Zealand Security Intelligence Service. In particular, it modernises those parts of the warrant framework that have not kept pace with technology, as the principal Act’s warrant framework is now over 30 years old. That framework was designed at a time when the principal methods of communication were by mail, landline telephone, or facsimile. Although the core surveillance powers contained in the warrant framework have remained relevant, new ways of communicating mean that those powers do not, in all respects, marry up with modern communication methods. Changes must therefore be made to enable the Security Intelligence Service to regain its full functionality before New Zealand hosts an important event like the Rugby World Cup. Changes to the warrant powers will ensure that the Security Intelligence Service is equipped to deal with the now widespread use of computer, mobile phone, and internet technologies, and to take advantage of new surveillance technologies available to it. The legislation also clarifies the protections from liability for persons acting under warrants, and provides for delegation powers.

In the Committee of the whole House the original bill was divided into two bills by Supplementary Order Paper 248, to reflect the need to amend the Crimes Act in respect of computer offences. The two bills are therefore the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No 3). The New Zealand Security Intelligence Service Amendment Bill achieves five changes: it adds a specific reference to electronic tracking in the warrant framework, it amends the subject of warrants to include cyber-identities, it removes the requirement to amend a warrant every time a new person is requested to assist under a warrant, it provides a proper suite of delegation powers, and, finally, it ensures that sufficient protections are in place for those who execute warrants. The Crimes Amendment Bill (No 3) removes an existing barrier to the use of modern surveillance methods as they relate to or affect computers.

These are important changes to the Security Intelligence Service’s powers. They are necessary to enable the Security Intelligence Service to keep up with new ways of communicating. They will improve its functionality in the modern age, and make sure that it is ready for the Rugby World Cup.

Whenever surveillance powers are updated, care must be taken to retain the very delicate balance between the right to privacy and the need to use surveillance in maintaining the security of the State. That balance is achieved by ensuring that powers extend only as far as can be justified, and by maintaining a strong system of checks and balances on the exercise of those powers. First, intrusive surveillance powers can be exercised by the Security Intelligence Service only under warrant, and warrants must be approved by the Prime Minister in every case, together with the approval of the Commissioner of Security Warrants, who must be a retired High Court judge in the case of domestic warrants. Perhaps it is appropriate here to place on record the excellent service of retired High Court Judge Sir John Jeffries in the work that he does. The other pillar to the system of checks and balances is the independent oversight achieved through the Office of the Inspector-General of Intelligence and Security. In particular, he or she has a statutory duty to review the execution of warrants. In this role he or she has access to all information held by the Security Intelligence Service.

The Security Intelligence Service is also subject to oversight bodies in respect of its general functions. The Intelligence and Security Committee oversees policy, expenditure, and administration. The Privacy Commissioner and the Chief Ombudsman retain important oversight roles in respect of information requests, and the Controller and Auditor-General reviews all expenditure.

I commend the work of the Intelligence and Security Committee on this bill. The committee is comprised of the leaders of the National Party, the Māori Party, the ACT Party, the Labour Party, and the Green Party. It worked in a constructive and considered way to improve the bill, and I thank the members of the committee for their contribution. The committee added additional safeguards to the legislation following the hearing of submitters’ concerns. The principal addition was the reference to human rights in the principal Act, requiring the Security Intelligence Service to perform its functions in accordance with a comprehensive set of principles. The committee also added other safeguards, including ensuring that mistaken identities are not tracked, requiring any irrelevant tracking records to be destroyed, and maintaining a register of delegations in respect of those persons who execute warrants. They sufficiently bolster existing protections in the principal Act.

The process of amending the principal Act has led to additional safeguards being introduced. The select committee recommended adding a set of principles to guide the operation of the Security Intelligence Service. Other safeguards recommended by the select committee included ensuring that mistaken identities are not tracked, and, together with the package of what has been proposed, they provide what I believe are adequate protections in the principal Act.

These bills achieve the necessary and, as I said, delicate balance between the two principles of national security and privacy. I commend both bills to the House.

Hon DAVID PARKER (Labour) Link to this

I rise to support the third readings of the New Zealand Security Intelligence Service Amendment Bill and its allied bill, the Crimes Amendment Bill (No 3). The Labour Party will be supporting both of these bills.

I will talk briefly about the balance that we try to strike in this Parliament between the rights of the individual and the rights of the community. This legislation strikes at the intersection of those competing interests. We all know that in New Zealand we try to protect against the inappropriate erosion of our civil liberties. Those civil liberties include the right to go about our business without intrusion by the State, or arms of the State, except where that is strictly necessary. Exceptions are made in various areas of the law. For example, if there is an allegation of some form of criminal activity, then an arm of the State has the right to apply to the court for various ways of intervening through a warrant process, so that people who are being investigated for crimes can have their affairs looked at a bit more closely. That involves an intrusion of the State, and whenever there is a suggestion that the rights of the State to intrude on private lives should be extended in some way, appropriate scrutiny is made by various arms of civil society. The media, the Law Society, civil liberty groups, and private individuals, to name but a few, all stand up and say that we should look at these things pretty seriously before we confer additional rights.

The problem that we have regarding the process that has been adopted in respect of the legislation we are now considering is that it was not as open as it could have been. I am informed that if one looks at the history of the Security Intelligence Service legislation, one would see that the last time the Act was amended there was a commitment to openness of process by the then Government under the leadership of the then Prime Minister, the Rt Hon Jenny Shipley, who ensured that to the extent possible, submissions on the bill could be heard in public. If any part of those submissions was sensitive and people thought that it should be secret, then they could apply to the committee and that particular part of the submission could, if the committee thought it appropriate, be heard in secret.

In respect of this legislation the Government chose a different course. It chose the opposite course. It actually said that instead of having a presumption that this should be done openly, it decided in advance that all submissions should be heard in secret. That is an issue that the Labour Party, together with other parties, including the Greens, has been critical of, because there was no need for that secrecy in a general sense, and that level of secrecy means that people are less well informed and more suspicious of what we are doing in Parliament than would otherwise be the case.

I have no doubt that most of the submissions that were heard by the select committee could have been heard in public. If they were heard in public, submitters could have heard what other submitters were saying to the select committee. Members of the fourth estate would have been able to listen to some of the things that were said by submitters. Submitters would have greater confidence in that process and also members of the fourth estate would be readily able to discern for themselves who was tilting at windmills and what concerns were real and should have real attention paid to them by the select committee.

However, because of the process that the Government, under the Rt Hon John Key, chose in this instance, there was no opportunity to have those submissions heard in public. As a consequence, the standard of debate we have had in civil society on the New Zealand Security Intelligence Service Amendment Bill is worse than it would otherwise have been. I think that is lamentable. Notwithstanding the fact that Labour supports this legislation as being a fair update of the powers of the Security Intelligence Service, I put on record again that I think the process was poor, that we have on a number of occasions in this Parliament seen poor process on the part of the National Government, and that it undermines public confidence in the institutions that we ought to be doing more to maintain public confidence in.

In respect of the merits of the changes that are made, the main changes have been well summarised by the Attorney-General. I will not go through all of the points that he made. Suffice it to say that in the main this legislation updates the suite of technologies that can be utilised by the Security Intelligence Service. Whenever there is an extension to those powers, we should be rightly suspicious in this Parliament that we are not conferring unnecessarily broad powers, and therefore unnecessarily intruding into the private lives of New Zealanders or creating some arm of the State that has inappropriate powers.

We also need to have regard to the fact that if technologies were not thought of when the original legislation was first passed, there are instances where the Security Intelligence Service might be able to exercise unregulated powers without the sorts of controls that we have through this legislation, and we uncovered that when the Justice and Electoral Committee looked at police powers of search and surveillance earlier in the year. We actually discovered that far from necessarily increasing the power of the police in all cases, in some cases we were regulating what were then unregulated powers, because those powers were not even covered by the original legislation.

I for one take considerable heart that we have checks and balances on the conduct by the Security Intelligence Service of its duties, through oversight by the Prime Minister, who has to sign off on warrants—

CHARLES CHAUVEL (Labour) Link to this

I will follow the shadow Attorney-General’s remarks by supporting the tenor of what he has just had to say. It was helpful to have the Attorney-General outline the legislation as it has come back to the House. It is regrettable on a matter of this import that it appears we will not have any more Government calls in the debate. None the less, I think it is appropriate to use the rare opportunity that we have to discuss in this Chamber security matters to express the qualified support that the Opposition brings to this third reading debate.

As has been said, the Labour Party has decided that it will support the amendment legislation. But just as the shadow Attorney-General entered a couple of reservations to that support, and, perhaps, looked forward to some ways in which we might do things differently in this area, I would like to expand on some of those thoughts. It is first of all a matter of real regret that the legislation had its first reading under urgency. There is too much resort to urgency in this term of this Parliament, and urgency is an abuse of the procedures that exist in the Standing Orders. They exist for a good reason; they exist because we do not have a second Chamber. All we have by way of reviewing what the executive brings into the House by way of legislation is the committee system—both the select committees and the Committee of the whole House.

If there is excessive resort to urgency, the danger is that those few safeguards that we have to properly scrutinise the laws that we are making are set aside. We should take all this a lot more seriously than we do. If we see further abuses of urgency, then we will also see a loss of confidence by the people in this place, and that is in the interests of nobody sitting anywhere in this Chamber.

I think what ought to be signalled first off is that certainly for my part, and, I think, for a number of my colleagues, it is appropriate to start thinking about ways in which we can better entrench the Standing Orders so that it is much harder to have resort to urgency, particularly where urgency involves the avoidance of committee procedure, or circumscribing the committee procedure, so that we cannot do our job—the job the public expect of us—which is to have a look at the content of legislation in a proper fashion.

The second reservation that needs to be expressed about the process concerning this legislation is that the committee hearings as far as the Intelligence and Security Committee was concerned were essentially, at the behest of the Government, heard behind closed doors. I want to echo exactly what David Parker said on this point. There is no need for secrecy to be a default procedure to be adopted in any committee of this House. There are sufficient provisions in the Standing Orders for evidence to be heard either in secret or in private so that any concerns about security or the identity of persons involved in the security apparatus or any other sensitive matter of national security can be adequately dealt with.

The fact that we did not have the opportunity to have those provisions used as they should have been during this process is lamentable. As David Parker says, that sort of process gives rise to what is no doubt unnecessary suspicion amongst the public that something is being done behind closed doors that ought to be being done with the disinfectant of sunlight instead. When we default to a private or a secret way of proceeding in the name of national security, we give rise to those fears and we feed them. We should not; we need not. There are, as I say, procedures in place to allow those matters to be sufficiently taken care of. Regard should have been given to them in this circumstance, and it was not.

Everybody on this side of the House concedes that the subject matter of this legislation is important. It involves a balancing act between the powers of the security agency to protect New Zealand interests on the one hand with the rights, particularly the human rights and the privacy interests, of those whom the service investigates and whom it protects. It is certainly obvious that the principal Act, given that it dates back to 1969—it is 42 years old—was enacted long before the advent of cellphones, the internet, portable devices, and social networking. So clearly there is a need to bring this sort of legislation constantly up to date to take account of modern technology.

It is obviously also important to have regard to the security environment in which we live. Another matter of regret I have is that it was thought necessary to rush through this legislation in time for the Rugby World Cup. We should not do that sort of thing. This sort of legislation is too important to make it contingent on passage by a particular date because of a particular event. It should contain enduring principles that represent getting that balance that I have just referred to right rather than saying we have to get this legislation through before the Rugby World Cup. That is just not appropriate. It is not a principled way to legislate on security matters.

The other thing that is appropriate to recall is that we are now 10 years on from the tragic events of 9/11. It is fair to say that, as a result of 10 years having passed, we can be more dispassionate about threats on the one hand and the civil liberties we are prepared to give up as a society on the other, in order to protect ourselves from those threats. Most people would acknowledge that in the shadow of those tragic events we were all much too willing to give up the civil liberties side of the ledger and not have proper regard to the balancing exercise that ought to have been taken. It is appropriate to take time after those sorts of events to think about the balance, and I wish there had been more time and a more open process by which that could have occurred in this situation.

The most important change to the bill that I want to commend to the House, which was made during the committee process and was one that I have already said I do not think was a perfect or ideal one, was the insertion of a series of working principles in the legislation by which the work of the Security Intelligence Service should be carried out. It is significant that those principles have been inserted and that they were inserted at the behest of the human rights watchdog in New Zealand, the Human Rights Commission. That is something to be pleased about.

The bill updates existing powers. For that reason it will receive support from members on this side. But it should be remembered that those powers are extensive. There is some oversight, as we have heard. There is the Intelligence and Security Committee itself; there is the requirement that warrants for domestic interception be granted jointly by the Prime Minister and the Commissioner of Security Warrants. We have had two very fine retired High Court judges serve in that capacity—Justice Neazor and Justice Jeffries. We should always be asking whether we have sufficient oversight. We have a combined agency here responsible for both domestic and foreign security matters. In Australia the Australian Security Intelligence Organisation is responsible only for the domestic side, and it is supervised by the Attorney-General in a nod to an attempt to get better oversight and better control by the rule of law into the process. We should clearly be thinking at all times about that balance to which I referred: our security on the one hand and our rights on the other. We should always be asking whether we get that balance right. For the reasons I have referred to, I am concerned that in this process we have not. We should always be mindful of the need to keep the principles by which we oversee security legislation relevant, not determine them by self-imposed deadlines relating to upcoming events. That is the wrong way to do it and I hope we have not legislated in haste here in order to regret at leisure.

KEITH LOCKE (Green) Link to this

The Green Party believes that the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No. 3) are inappropriate and unnecessary legislation. The legislation is inappropriate because we should not be giving more surveillance powers to such an unaccountable Government agency with a history of using these powers to spy on critics of the Government. It is unnecessary because there is a review of the whole New Zealand Security Intelligence Service Act due next year, according to the papers that accompanied this amendment legislation. This review should be similar to other reviews of Government agencies—that is, the review should encompass not just the technicalities of legislation but also what the Security Intelligence Service is actually achieving, if anything; what overlaps there are in its functions with those of the police; what functions can be dispensed with; and whether the service should continue as a separate organisation.

In discussing or reviewing the SIS, let us first look at its security functions as outlined in the New Zealand Security Intelligence Service Act. The SIS is supposed to protect, as shown by the definition of “security” in section 2(1), “New Zealand from acts of espionage, sabotage, and subversion…”. “Espionage” is defined as the communication of information to foreigners with an intent to prejudice the security of New Zealand.

The reality is that no New Zealander would admit to that intent. New Zealanders are constantly conveying information to foreigners—we are a pretty open society with few real secrets, and we do not actually have any nations who are our enemies. The WikiLeaks documents show that Bruce Ferguson, who was our Chief of Defence Force, met with US Embassy officials expressing concern that New Zealand’s anti-nuclear policy was affecting relations with the United States. This probably prejudiced the security of New Zealand, as the Greens would look at it, but there was no intent to commit espionage. We hardly need an agency separate from the police to deal with espionage in this country. Sabotage also requires an intent, as defined, to prejudice the security of New Zealand, which may be hard to prove in court. In any case, sabotage, whatever its motivation, is surely a police matter rather than one for the SIS.

In addition to espionage and sabotage, the Act refers to subversion and provides a two-part definition. The first part of this definition relates to people attempting to overthrow the New Zealand Government, or encouraging this. This is hardly a problem we have in our stable parliamentary democracy. Nobody is organising a coup d’état these days. The second part of the definition of “subversion” in section 2 of the Act is “the undermining by unlawful means of the authority of the State in New Zealand:” This definition has been used to justify spying on protesters, such as during the anti-Apartheid Springbok Tour protests in 1981 when thousands of New Zealanders engaged in civil disobedience. Of course, the actions they engaged in at that time, which were technically unlawful according to the wording in the Act, are now hailed by most New Zealanders as a patriotic deed.

The Act also allows the SIS to spy on foreign-influenced activities that, under the definition of “security” in section 2(c)(ii), “are clandestine or deceptive,” and that (iii) “impact adversely on New Zealand’s international well-being or economic well-being:”. Which activities impact adversely is generally a matter of political debate. There is no clear right answer, although the Government’s view of what impacts adversely is generally the one that the SIS goes by. The Greens would argue, for example, that the Government’s negotiations for a free-trade and investment deal with the United States of America, which are being done somewhat clandestinely, thus fit the Act’s definition and are “adversely affecting New Zealand’s international and economic well-being”. It is well known that the SIS, in line with the Government’s definition of this type of negotiation, looks in the other direction, as in the 1996 raid on the home of anti - free trade and investment activist Aziz Choudry. The targets of SIS spying are never the Government or active supporters of its policies, but always its critics. That is what is so dangerous about the SIS. As members know, I have obtained the large SIS file on my political activities over the years, which were legal activities that politically challenged successive New Zealand Governments.

The final function of the SIS in protecting “security”, as defined in the New Zealand Security Intelligence Service Act, is to prevent terrorism but, again, surely that is predominantly a police function. Other Government departments, including the police, are subject to performance measures to work out whether we, as taxpayers, are getting value for money. Should we not ask what the SIS has achieved against what could be its performance measures? Has it detected any spies, saboteurs, terrorists, etc.? If it has not—and it appears that it has not—is there a strong case for either slimming down the SIS, as is happening at the moment to other Government departments where staffing levels are deemed excessive to needs, or perhaps getting rid of the SIS altogether and relying on the police to deal with all politically motivated crime? We know that the Police, not the SIS, was the agency that tracked down the French terrorists who bombed the Rainbow Warrior, and it was the police who tracked down the Mossad agents who were obtaining fraudulent New Zealand passports. The SIS has no similar successes to its name.

We could also apply performance measures to the thousands of security vets the SIS has done on civil servants. How much have these actually enhanced New Zealand’s security, or is there a greater downside? Could we find out how many civil servants have missed promotion simply because they have been deemed by the SIS to be too active against Government policy? We just do not know. That lack of knowledge of the upsides and downsides of SIS work is a major problem. The agency has such limited accountability mechanisms. There is only a part-time Inspector-General of Intelligence and Security, and Parliament’s Intelligence and Security Committee—a statutory committee, not a select committee—has not met very much to scrutinise SIS activities. It did, to its credit, spend a little bit of time on this bill, even if it did decide to hear the public’s submissions in secret—quite wrongly—and, to its credit, it actually came up with a few amendments. The Greens support the committee adding a human rights clause to this legislation, as recommended by the Human Rights Commission, but we wonder whether the SIS will actually take much notice of the clause.

Then there is the problem of the SIS’s subordination to overseas intelligence agencies, which has been a problem from day one in 1956, when the agency was set up primarily to assist British intelligence. Nowadays it probably takes most of its lead from US agencies. The WikiLeaks documents talk about the way in which the SIS has recently integrated its threats database with that of the American Government. There are obvious dangers there, because the US administration has a very broad definition of dangerous people, and it can extend that definition to its political opponents. The SIS subordination to foreign intelligence services was stark in the Ahmed Zaoui case, where a democratic critic of the Algerian Government was threatened with expulsion because, as the SIS admitted in its documentation, like-minded countries would be upset if he were allowed to settle here. In that, the intelligence agencies of France, which supported the Algerian dictatorship, were influencing the New Zealand Government.

That was not unusual. We now know from the Arab peoples’ uprisings of 2011 that the French, British, and American Governments have supported Arab dictatorships up to the last, really, because only when the Tunisian and Egyptian people were on the verge of victory did the Western powers change sides and give those people some support. Even now, the United States supports the ruthless Bahraini regime against the big people’s movement, and of course the factor there is the US Fifth Fleet being based in Bahrain.

The American Government’s view of the world reflected in its intelligence service is not one that our intelligence service should be adopting, but it seems to be doing so. The extra surveillance powers that the SIS has been granted in this bill, particularly the electronic interception powers, will to a significant degree be used to implement an agenda determined not by New Zealanders but by American intelligence agencies. The SIS’s partner agency, the Government Communications Security Bureau, is running a satellite spy station at Waihopai, mainly in the interests of the US National Security Agency. The SIS was set up as a Cold War instrument, with one bloc against another, but now that we do not have any enemy countries, there is not such a rationale for such a spy agency to continue to exist. We should leave security to the police. Thank you.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

Tēnā koe, Mr Assistant Speaker Robertson. Tēnā koe e te Whare. Rau rangatira mā, tēnā koutou katoa. I stand on behalf of the Māori Party to take a brief call on the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No 3). These bills are yet more in a long line of legislation that is preparing us for the Rugby World Cup. The legislation proposes that in order to support effective security operations, we need to update the warrant framework to take into account the technological advances that have been made in the storage and communication of information. Law commissioner Dr Warren Young has apparently provided an independent analysis of the legislation, and was satisfied that the need for change was warranted, and that the amendments proposed in this legislation would provide the Security Intelligence Service with an opportunity to effectively undertake its statutory functions.

I have to say that, as a general principle, the Māori Party has had concerns in the past in relation to the operations of New Zealand’s surveillance machinery as it impacts on Māori. There are, of course, the as yet unresolved concerns about the Urewera raids. The SIS has stated that it was not involved. It appears to have been brought into the issue because of a briefing on the raids it gave the then Leader of the Opposition, John Key.

In that fateful period in October 2007 more than 300 police raided alleged military-style training camps in the rugged Urewera ranges, and homes in Auckland, Ruātoki, Palmerston North, and Wellington. Later that month the SIS issued a rare public statement to dispel speculation that it had been involved in the police operation that culminated in the arrest of 17 alleged activists. In that release Dr Warren Tucker, in his position as Director of Security, advised that the SIS had no powers to enforce security, such as arrest or detention, and concluded that the operations were a police matter. But in his release Dr Tucker did not address the issue of whether the SIS may have been involved in the year-long surveillance operation that led to the raids, so in Māori communities the question still remains unanswered.

Other concerns date from some 7 years ago, from a time around 2004 when there were allegations that the SIS had spied on members of the Māori Party and Māori organisations. An investigation by the Inspector-General of Intelligence and Security found that spying had not taken place. I make just a brief mention of this background, as I think it is timely to consider two other events that have occurred in the last 2 days that also have a bearing on this legislation. The first, of course, is the historic agreement signed with Ngāi Tūhoe at Mātaatua Marae in Ruatāhuna on Saturday. The signing signalled a landmark in the relationship between Tūhoe and the Government. I have to say it is humbling to see the generosity of spirit exhibited by a people who have endured such bitter twists and turns in their interactions with the Crown over the last century and more.

The second key event, of course, is the claim that has been described as the most significant claim in a generation, and that is Wai 262. Ko Aotearoa Tēnei is the Waitangi Tribunal’s report into that claim and it describes how key priorities in the preservation and transmission of Māori culture, identity, and knowledge should be shared between the Crown and Māori. I have to say that when it comes to the urgency accorded this legislation and any legislation paving the way for Rugby World Cup fever to take over our nation, I am saddened that this most significant report was not considered worthy of the same urgency. Twenty years between the claim being made and the claim actually coming to report status is way too long.

What better time than Māori Language Week to bring to the fore the place of Māori culture, identity, and traditional knowledge? In fact, Rugby World Cup 2011 provides an excellent opportunity to use Māori language knowledge as New Zealand showcases itself on the world stage. In keeping with the Māori Language Week theme of manaakitanga, this week provides us with an excellent opportunity to think about how we make people welcome when they are in our company and how we give regard to, and care for, others when hosting visitors. Manaakitanga is about keeping our visitors safe and secure, but also it is about extending the hand of welcome by sharing Māori culture as integral to national culture and identity.

We support the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No 3) at their third readings, and we look forward to the companion legislation promoting the status of mātauranga Māori into our national agenda.

DAVID SHEARER (Labour—Mt Albert) Link to this

Thank you for the opportunity to speak on this legislation. As I said in the Committee stage, this legislation is extremely important. It balances the needs and the interests of the State with the interests and the freedoms that we take for granted in New Zealand—our individual and personal freedoms. I would like to comment in passing on Keith Locke’s contribution. There is no doubt that a lot of the security issues that we face in the world are very much seen through a political lens. They may not necessarily be security issues as such, but more of a political nature. I commend the Gwynne Dyer article in yesterday’s New Zealand Herald, where he looks at the various permutations that have taken place in the investigation of the killing of the Lebanese Prime Minister, Rafiq Hariri, which was first pinned on the Syrian regime and now has been put on Hezbollah. But the fact that the blame has moved is more about where international politics was standing at the time, rather than, as he points out, the real issue of blame and proof. It is something that we have to take considerable care in addressing when looking at the powers of our security agencies and the way that those powers are manifest here in New Zealand.

We are very lucky in New Zealand because we are geographically isolated. We do have, in a sense, that geographic security blanket, if you like, that comes from being at the bottom of the Pacific. It is more difficult to launch an attack on New Zealand, it is more forewarned, although I have to say that as cyber and internet threats increase, we cannot take that security for granted. A part of that security, and again Keith Locke touched on this as well, is the fact that we do not have, necessarily, natural enemies. We have been known for our rather independent stance in the world, and that has undoubtedly contributed to New Zealand’s security in the world.

I was struck by the comments about the recent role of the SAS in Afghanistan. Comments were made about the fact that when SAS soldiers walked out of the operation that they carried out with the Afghan Crisis Response Unit—and this drew criticism from the Prime Minister as well—photographs had been taken and published in our newspapers. The New Zealand Herald printed them. The television stations, on the other hand, chose to blank out the various soldiers’ faces. I think this is a little bit like looking at our role there after the horse has bolted, in a sense. We know, and everybody knows, that the New Zealand SAS are in Afghanistan. We know that they are training the Crisis Response Unit. We know they take an active role in operations. When they move around with a Kiwi emblem on their arms, we know that those people in uniform are New Zealand soldiers. So when we are taking a photograph of them coming out of an operation, it is a little bit late in the piece to say that we should blank out their faces because showing their faces could constitute some sort of security risk. Everybody in Kabul will know who those people are, and certainly every journalist and every photographer will know exactly who those people are. I can say that the Taleban are not worried about whether photographs are up on New Zealand television screens or whether the soldiers’ faces have been blanked out in the New Zealand Herald article, in terms of whether they will become a threat. We are somewhat naive in our portrayal of the way we try to protect our soldiers when we put them in that sort of situation, when we put them in the situation when they are training and working in an operational way, alongside the Crisis Response Unit.

There have been a number of criticisms about the Crisis Response Unit, by Jon Stephenson, in terms of the way it handles prisoners and our relationship with the unit. That does not help our independent stance in the world. It creates and propagates the possibility that New Zealand is seen as a threat and therefore a target.

I come back to the legislation. As other speakers have mentioned, the New Zealand Security Intelligence Service Amendment Bill is updating the 1969 legislation. It is 42 years old now, and, of course, technology has changed dramatically in that time, with the introduction of cellphones, the internet, data storage, and global positioning. A whole range of different electronic techniques have come into being that were not in any way foreseen in 1969. Now, of course, we are looking to update that.

But, like my colleagues, I want to touch on the process by which this legislation has been examined and looked into. As I said at the beginning, this is extraordinarily important legislation. It should have generated, in my view, a great deal more scrutiny and interest from the New Zealand public. Part of the reason it did not get that scrutiny and did not generate that interest was the way that it was handled. First off, the first reading, which in many ways is the most important reading because it lays out the context in which the legislation is brought into the Parliament, was heard under urgency. This is not legislation that I maintain should be considered under urgency.

Secondly, the select committee process was heard in secrecy. That does nothing, in any way, to alleviate the fears of New Zealanders in terms of whether the provisions contained in this bill can be accepted with a degree of confidence and comfort. Instead, it generates the perception out there that this is secret, and that it will affect them; it generates a sort of suspicion, which we have heard about outside this House. So we have fed those suspicions and those misperceptions, rather than allayed them. John Key said he was going to hear it in secret, and then he said he was having second thoughts. We were flip-flopping all over the place. Jenny Shipley, when she was looking at amending the Act in 1999, maintained that she would hear submissions on that amendment bill in public, and that was very much the stance from this side of the House.

As other people have mentioned, it is the time of the Rugby World Cup. I regret the timing in that we are pushing this legislation through in time for that. I would have thought that we had sufficient safeguards in the current operations of both the Security Intelligence Service and our police network to make sure that we had pretty much all of that covered. Nevertheless, we will be pushing it through in time for that. I hope, as Mr Locke mentioned as well, that we will be able to have the time to go back next year to examine the legislation in a great deal more detail, and hopefully under a great deal more public scrutiny.

The bill was amended as it went through Parliament. I just want to make a specific note of some of those amendments that I thought were very positive. Clause 5A inserts new section 4AAA, which looks at the “Principles underpinning performance of functions”. This amendment was recommended by the Human Rights Commission. Some people say it does not have teeth, but I believe it lays out the real principles on which the Security Intelligence Service should operate, and I think those principles are very welcome. The legislation also makes provision for instances of mistaken identity, the destruction of irrelevant records, and some reporting requirements, as well, which are all welcome.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I rise to speak in the debate on the New Zealand Security Intelligence Service Amendment Bill and the accompanying Crimes Amendment Bill (No 3). Obviously I am not on the Intelligence and Security Committee and have not taken a particular role in the passage of this legislation through the House, but I have always taken a significant interest in matters of human rights and matters relating to security intelligence, as well. Having been New Zealand’s Minister of Immigration for a period of time, I have had occasion to work with the New Zealand Security Intelligence Service.

I wanted particularly to acknowledge Keith Locke’s contribution to the debate. I do not always agree with all aspects of his contributions in these matters, but I just want to put on the record that I believe he has been a sincere and consistent voice for civil liberties and human rights in this House, and I think it is a voice that will be missed. I really wanted to place that on the record. I listened to his contribution very carefully, and I felt that this place will be poorer for that voice not being here in the future.

I will say why I believe that the bill should proceed, even though there was some consideration given to the broader security review that will now take place, to which Keith Locke referred. I have spent some time considering the regulatory impact statement, as I am wont to do on legislation, as some members of the House will know. What I appreciated about this regulatory impact statement is that it actually meets the standards of good regulatory practice, because it establishes all the different options. There are really only three options that the committee could consider in this particular instance. The first is the status quo, which it rejected for reasons that I think will be obvious, but I will come back to those. The second was to defer the legislation, and that picks up the point Keith Locke made, which was about the fundamental review of New Zealand security legislation in the next 2 to 3 years, and whether it would be better to tie up this legislation within that context rather than just updating the legislation seemingly on an ad hoc basis. Thirdly, there was the option to have an immediate amendment to the legislation by way of an amendment bill, such as we are now dealing with in this third reading today, to address high-priority amendments. The amendments identified in the regulatory impact statement are those amendments that we are considering in the House today: “providing an express framework for the use of electronic tracking and location devices, clarifying the approach to qualified exemptions for computer offences, expressly providing for the specification of facilities, addressing protections from liability for those persons acting under warrants, amending the requirement to specify those persons assisting under warrant, and fixing gaps in the delegation powers of the Director of Security”.

I wanted to mention what the particular amendments were in relation to, because of the reason the Government has decided not to prefer the status quo, and why the regulatory impact statement, which was prepared by the Security Intelligence Service, did not. The reason it did not prefer the status quo was that the forthcoming Rugby World Cup is being held in New Zealand, 10 years after the September 11 event. We cannot ignore that event in New Zealand. We might feel that we are at the other end of the world, but we are inviting the world to participate in a very major event in this country. I believe we have to be cautious, we have to be careful, and that requires us to update our security intelligence legislation in the manner proposed.

My colleague David Shearer, just as he was concluding his comments, made the point that the Intelligence and Security Committee made some amendments to the bill as it was going through the committee. Picking up where David Shearer left off, the submission of the Human Rights Commission was quite a powerful submission heard by the committee. That submission asked that the principle section include reference to human rights, democratic oversight, impartiality, and professionalism in terms of the role of the Security Intelligence Service. They are very, very important changes. My colleague was saying that it is felt sometimes that the Human Rights Commission does not have sufficient teeth, but I think this was a really good example of where the Human Rights Commission made a valuable contribution to the process, which has led to improvement of the legislation as a result.

The other speakers on the bill have talked, too, about the nature of the independent review of the regulatory impact analysis prepared by the New Zealand Security Intelligence Service. That was reviewed by Dr Warren Young from the Law Commission. In his comments he stated that “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.” That was certainly reassurance on our side for the continuation of this legislation.

The other point I wanted to bring to the attention of the House was that in the regulatory impact statement, a significant aspect of the analysis talked about benefits in terms of the balancing that has to be undertaken between rights—privacy rights and human rights—and our security as a nation. There was a quote from Geoffrey Palmer, which I thought was well worth placing on the record. It begins with reference to national security, privacy, and other fundamental civil liberties being complementary rather than conflicting values. This is the quote from Sir Geoffrey Palmer: “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 wonderful summary of the interests that we debate as competing, when they may in fact be more complementary rather than conflicting in nature. I thought that was certainly a very important point to make.

The Law Commission also, when it was looking at search and surveillance powers recently, had this to say: “while there is a balance to be struck, there is a good deal of complementarity between the two sets of values, particularly in a strong democratic state such as New Zealand. Search powers that encroach too far on human rights values are unlikely to gain legislative or community support. Similarly, investigative powers that are too tightly controlled and that prevent law enforcement officers from doing their job effectively will bring human rights norms into disrepute.” Again, I think that the complementarity principle is one that is well worth taking into account as we consider this legislation.

I am certainly happy to stand here in this House and support the passage of this legislation. I look forward to the modernising of our New Zealand Security Intelligence Service framework. I think it is important that that proceed, and that it gains that broad public support that we need for protecting all of those values that we hold dear to our hearts.