New Zealand Security Intelligence Service Amendment Bill

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might mean that there is no need now to have the special provisions in sections 253 and 254, which are accordingly repealed.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—

💬 Grant Robertson: 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.

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.