New Zealand Security Intelligence Service Amendment Bill

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.

Before dinner I was talking about the problem of removing from liability people who help the SIS in the execution of a warrant. I said that when someone is performing a State function for any State organisation the fact that they are obeying the dictates of their superiors must certainly be taken into consideration, in most cases. But I do not think there should be a formal exclusion of liability in all circumstances. That exclusion could potentially lead to some people getting off some rather nasty and untoward behaviour.

I think this is particularly true in the case of an agency that is so secret, and that in many regards is not subject to the Official Information Act. It has a let-out clause for matters of national security under the Official Information Act. It does not really have accountability mechanisms that are up to standard. For instance, the Inspector-General of Intelligence and Security is a body that people can appeal to if they ever find out that they are being unjustly spied upon, which is often a bit difficult. But that position is essentially part-time, it is not very well staffed, and for all the good will in the world of the person who may be the incumbent Inspector-General, it does not really act as a very good control agency for the SIS.

Similarly, we have heard earlier in the debate that the Intelligence and Security Committee meets in secret, and does not meet very often. It is made up of the Prime Minister, the Labour leader, and their appointees, but they are busy people. They have spent a bit of time on this bill, which is to their credit, and they have come up with some positive amendments to the bill, but the Intelligence and Security Committee is not really a proper select committee of Parliament. It is not up to the standard of some of the overseas intelligence committees in Western democracies, such as in Britain and elsewhere, which have more teeth, get more information, and are more in the public domain in the sense that problems that arise are discussed openly, and reports are made and discussed.

Even if we look at the report back from the Intelligence and Security Committee on the estimates and the annual reports, virtually nothing is there. There is no breakdown of expenses. In that sense, the powers we are giving to the Security Intelligence Service under this bill—and I have talked about the liability clause—are not really accountable. There are no real accountability mechanisms to either Parliament or the people, and that is one of the reasons why the Green Party is not for proceeding with this particular bill.

The SIS is unlike the police, which has the Independent Police Conduct Authority, with very rigorous examination, and a proper select committee: the Law and Order Committee. It has all sorts of accountability mechanisms built in, and it has more of the public media limelight on it. But where it is necessary, it acts in a secret way—if it is tracking down criminals whom it is unwise to warn that the police are giving them some attention. The police combine the necessary secretive element with the proper accountability. Unfortunately, the SIS, which has been given more powers under this bill, does not have those particular mechanisms.

Clause 1 agreed to.