Countering Terrorist Fighters Legislation Bill

It may be helpful if I just make some preliminary comments on a couple of key aspects of the bill. What the bill does is make targeted amendments to enhance powers to monitor and investigate and to restrict and disrupt the travel of foreign terrorist fighters and other violent extremists.

The first set of amendments deals with amendments to the Passports Act. The amendments are subject to a sunset clause, so that clause expires on 1 April 2017. That was amended by the Foreign Affairs, Defence and Trade Committee from 1 April 2018. The purposes of the changes to the Passports Act are to improve its operation and take into account the United Nations Security Council Resolution 2178, which asks States to restrict the movements of foreign terrorist fighters, including their onward travel if outside their home country.

Let us take a look at what is proposed. First one goes, under the current Passports Act, to section 8A. Travel documents can be cancelled if a person is a danger to the security of this country because they intend to engage in, or facilitate, a terrorist act. At the same time when one is looking at that, one needs to bear in mind section 5 of the Terrorism Suppression Act 2002, which defines what a “terrorist act” is. So it allows the cancellation of a passport of a suspected foreign terrorist fighter, and, as I said, section 5 of the Terrorism Suppression Act sets out what a terrorist act is.

What we seek to achieve under the amended proposal is to clarify and make it explicit that a passport or travel document can be cancelled on the grounds that a person is a danger to a country other than New Zealand because they intend to engage in or facilitate a terrorist act. I say this immediately—I thought I had said it in my second reading speech—and I emphasise to Mr Goff, who asked some questions of me, that those of his constituents who want to go and defend or provide help to their families in the circumstances he outlined would not engage the cancellation proposals here, provided, of course, that they are not engaging in terrorist acts. From the way he described it, they certainly would not come under that category. What we are not seeking to do is what the Australian legislation does—that is, declare an entire region of the Earth off limits to our citizens. But it comes back time and time again to that definition of a “terrorist act”. I hope that clarifies it for the honourable member.

The second thing relates to the duration of a cancellation or refusal to issue. Under the current legislation—I refer to section 8A(2) of the Passports Act—passports can be cancelled or refused for a period of 12 months. In this bill, there is a default cancellation or refusal period of 12 months, but it authorises the Minister of Internal Affairs to specify a period of up to 36 months if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country. I will not go through the safeguards on the exercise of this power, including rights of appeal to the High Court judicial review and so on.

I do not intend, unless honourable members have questions for me, to go through the particular changes to the Customs and Excise Act and the Immigration Act. What I do want to do is say something about the proposed amendments to the New Zealand Security Intelligence Service Act 1969, set out in Subpart 2 of Part 2. The first deals with visual surveillance. Under the 1969 legislation the SIS cannot obtain a warrant to conduct visual surveillance. The police have this power, and that was provided in the Search and Surveillance Act 2012.

The proposals will mean that the SIS will be able to obtain a warrant to conduct visual surveillance, subject to the same conditions and safeguards as intelligence warrants. The warrants will be available only for the detection, investigation, or prevention of any actual, potential, or suspected terrorist act or facilitation of a terrorist act. I emphasise those phrases because the limitation was inserted by the select committee and, frankly, I think it is a very good limitation. The strengthened office of the Inspector-General of Intelligence and Security will provide external oversight of the warrants, and the bill requires the Director of Security to provide a copy of the warrant to the inspector-general as soon as practicable after it is issued.

The second set of amendments deals with surveillance in situations of emergency. Under the current legislation, the SIS cannot act without a warrant in situations of emergency or urgency, though the police have the power to conduct surveillance for up to 48 hours without a warrant in such cases. Under these proposals, the director will be able to authorise surveillance activities to be undertaken in situations of emergency for a period of up to 24 hours. As is clear, that was reduced from 48 hours by the select committee, and we are perfectly happy with that. After that, a warrant must be obtained to continue surveillance.

I thought the select committee inserted a number of very sensible safeguards, including that the director must be satisfied that the threshold for issuing a warrant is met. Authorisations can be granted only for specific purposes. Supplementary Order Paper 39 makes it clear that only the director can issue the authorisation. The director must notify the Minister, the inspector-general, and the Commissioner of Security Warrants immediately. The Minister and commissioner can order the New Zealand SIS to discontinue any activity under the authorisation. Importantly, no further application may be made for an authorisation in respect of the same subject matter. If no warrant application is made to the director, then the director must provide a report to the Minister and the commissioner setting out reasons why it was not done.

These, I think, are very sensible constraints that have been added by the select committee. The Government, as was very clear, was very happy to support them. When the general review of the legislation is conducted next year there is going to be ample time to take a good look at them and see whether they are working or whether further amendments are required. They are the only points I wanted to raise with the Committee at this stage. I have jumped over customs and excise and immigration, but I thought they were the clauses that warranted detailed consideration.

I want to thank the Minister in charge of the NZ Security Intelligence Service, Chris Finlayson, for his assurance in the Committee about the two instances that I mentioned—people who might be going to protect their families against the Islamic State of Iraq and Syria (ISIS), who might be under siege in Kobani on the Turkish border; and people who are going to fight for the Free Syrian Army for a democratic and free Syria that respects human rights.

I have got the Minister’s quote from Q+A. If I could perhaps get the Minister’s attention and get him to listen to this, it seems to contradict the assurance that he has just given us in the Committee. This is the quote from Q+A, presuming the New Zealand Herald is quoting him accurately. This is from Mr Finlayson: “We do not want any New Zealanders getting caught up in this mess in the Middle East … whether they go off and want to fight for the Kurds or want to fight for ISIL.” The point that I just made to the Minister was that if I were a Kurdish refugee living in New Zealand and I was watching the slaughter of my people in Syria, I might just be inclined—if I was of that age—to want to go and support my family there.

The fundamental thing that the Minister has the right to object to, I think, is somebody going to fight for a designated terrorist organisation that is doing acts against humanity and committing war crimes. I understand that. The United Nations Security Council Resolution 2178 says that we should take every step that we can to prevent that happening. I am really worried, however, if we go beyond that resolution.

Resolution 2178 was, supposedly, the resolution that was one of the reasons for the urgency of this legislation. But I believe that a New Zealander has the fundamental right to travel in other than that very narrow band of circumstances, where they are going to aid and abet the commission of war crimes. Yes, of course we should stop that. We are obliged to do so internationally, we are obliged to do so under our responsibility to protect, and we are obliged to do so in all humanity. But the Minister’s comments and the comments that he made in the House during the second reading—and, again, I wrote down what he said—were this: “The main point is we do not want New Zealanders getting involved.” It might not be sensible for a New Zealander to go and fight in Kobani—they are putting their life at risk—but they might believe fundamentally that that is the right thing to do to protect their people, their families, and their homes, and I do not think that this House has any place stopping somebody from going to engage in a conflict for those reasons.

Some years ago I passed legislation in this House that stopped mercenary fighters—that is, where you go overseas to kill somebody for money—and I believe that it is equally justifiable, under the Passports Act, to withhold the ability of a person to travel to do that or to commit crimes against humanity. My father’s generation contained people who proudly went to fight against Fascism in the Spanish Civil War. We are proud of the people who did that, and I would not want to see this legislation, in the 21st century, preventing what a former generation did, which was to fight for democracy and for human rights against oppression—as against the legislation here, which quite properly would prevent people from fighting for a terrorist organisation, committing crimes against humanity.

The legislation obviously takes its definition from the Terrorism Suppression Act 2002. I regret that there was an amendment to that, around 2007, I think, which means that all sorts of things could be defined as terrorism. You could define going to fight against apartheid and for Nelson Mandela as terrorism. Is that really what we would want to have in our legislation—that we could interpret it as being to prevent that sort of thing happening? So I do seek a clearer definition from the Minister as to when these amendments to the Passports Act might be invoked and when they would not be invoked, because, clearly, officials gave me the assurance that they would not be invoked in the two cases that I mentioned to the Minister not so long ago.

I want to just make a couple of other quick points about the passports legislation. I understand that there may be a reason to need to temporarily suspend a passport for 10 days, as is done in clause 7(1), such as where you think a person may be going to fight for a designated terrorist organisation and you want to stop that person. I have no particular problem with that clause.

I welcome clarification from the Minister on another point, and that is a point that many submitters came to the Foreign Affairs, Defence and Trade Committee about. They said: “You are clarifying the right to take away a passport from a person who is already overseas. This will render people stateless and this will prevent them from coming home. And the best way to help a terrorist organisation is to not allow a person who might have been led into contributing to ISIS to come home and escape from that.” I think the explanation given was a good explanation: this does not render people stateless, it does not affect their citizenship, and the Minister must—the word in the legislation is “must”—provide a journey-specific emergency travel document for them to get home. I have no problem with those two aspects of the changes to the Passports Act.

The problem that my colleagues in the Opposition parties and I had was the concept that we needed to withdraw a passport for 3 years. This was something that the New Zealand Law Society, in its submission led by Sir Geoffrey Palmer, also had a problem with. The point is this: under the current Passports Act you can already deny a person a passport for a year and then you can renew the denial further. When I asked officials the question as to whether anybody who has been denied a passport—and it is a very small number of people—is now pressing for judicial review or taking court action that might lead them to be able to regain their passport and go over overseas, the answer was no. Three years is a long period of time. I would have thought that legislation introduced under urgency and rushed through the House to deal with a specific problem would be limited to dealing with that problem.

The one point the Labour Party put to the Government that was not accepted was the issue of whether you actually needed to change that 3-year designated period. Under proper consideration and in the normal course of a bill going through scrutiny and analysis, you might be able to prove to me that that is a good thing. But what the Minister could not prove to me—and nor could you, Mr Chair—is that you needed to do this immediately in this piece of legislation, under urgency. I asked the question repeatedly, as did my colleagues, why it is needed to extend that period of denial of passport to 3 years in one go, after the first year of denying the passport. Why can that not wait until a substantive review takes place, legislation comes into the House in the normal way, and it is considered before a select committee? Why do we have to do this now? There is no evidence that this is needed now, immediately, and before that review takes place.

I would be grateful if the Minister could take another call and just answer those two points. Firstly, why 3 years, when there is no apparent need to do it urgently? And, secondly, could he just clarify what he is quoted as saying on Q+A on Television One and what he has said to the House? I am still left in some doubt as to whether my constituents, in the circumstances I have explained, would actually be able to leave countries overseas, given the transcript of what he said on Q+A.

At its first reading, New Zealand First supported this bill to the select committee, but I said then that we would not necessarily support it any further. Since then, two things have become clear.

Firstly, in terms of context, we know now that the Government, despite its unconvincing denials, has been planning military engagement in Iraq with a sizable number of troops. This is not what most people want and it is not what New Zealand First wants. We want to stay out of it. If the Islamic State of Iraq and Syria did not know of New Zealand before now, then it certainly does at this stage. We are now definitely an active and direct enemy. That means an increased risk for New Zealand, not a lesser risk.

Secondly, we have learnt that the great majority of people who submitted do not want this bill because it means giving up some important rights without sufficient cause and without any genuine case for urgency having been made out. Mr Fletcher Tabuteau is going to speak more about what the people who submitted to the select committee said. But I want to simply say this: New Zealand First does not support the deployment of New Zealand troops to Iraq on any basis—

The CHAIRPERSON (Hon Trevor Mallard): Order! Can I remind the member we are now in the Committee stage. We have accepted the principle of the bill, and we are now discussing the specific clauses in the Committee, as to whether or not the Committee accepts specific clauses. Therefore, it is important to address those clauses.

I certainly will be doing that. I was saying that there is no urgent or sufficient threat to New Zealand to justify any of the clauses of this bill. The assessed threat is “low” and it is not expected, so it is very sad to see Labour supporting the contents of this bill. It is not just the contents but also the disgraceful fast tracking of it that has upset so many people and treated the public with a lot of disdain, I think, along the way. We are entitled to ask, even at this stage, why the rush now, given that foreign fighters have been going to Syria and Iraq for months, if not years. Why was the public not told that the deployment of troops was planned during the election campaign? Why was the attack on human rights—

Order! [Interruption] Order! I have warned the member.

I rise to address the two Supplementary Order Papers that the Green Party has put forward in my name—Supplementary Order Paper 41 and Supplementary Order Paper 42. I wish to try to explain those and explore them with the Committee, and respectfully invite the Minister in charge of the NZ Security Intelligence Service to address them and explain his Government’s reasons, perhaps necessarily, for opposing them. They are put forward with constructive intent. As I think, Mr Chairman, you mentioned, we are now in the Committee stage where we have accepted the underlying purpose of the bill, even though the Green Party opposed it, and so we are constructively seeking to improve the bill. Supplementary Order Paper 41 essentially brings forward the sunset date from 31 March 2017 to 30 June 2015 in respect of all three pieces of legislation. The purpose of that is to ensure that this bill would expire in advance of the review of the legislation. I have no further explanation for that, other than to put it to the Committee for its consideration. We think the argument is sufficient to do that, for reasons that no doubt are self-evident. If they are not accepted, that will be the will of the Committee.

I want to devote more of my time to Supplementary Order Paper 42, which has essentially a purpose clause. We do believe that the omission initially from the omnibus bill of a statement of general purpose was a major shortcoming. Now that it is to be divided into three bills, we would simply recommend that the statement of general purpose be identical in each of those three amendments to those bills. The purpose of that is with a view to trying to get some clarity in it. I listened through the select committee hearings and also to the Minister this afternoon explaining a view that the three bills, in their current form, are “tolerably clear”, which is a good play on words, reflecting some of the select committee’s deliberations. Our response is that “tolerably clear” is not sufficient for legislation, certainly in criminal legislation, and also, with equal force, in legislation that essentially curtails civil liberties in the name of an expansion of State powers. It is not sufficient to have it tolerably clear. In our humble view, it actually is not tolerably clear, but even if it were, that is not a sufficient threshold.

Why do we say that? Here I am, still sitting at the feet of the Minister and his governmental colleagues, trying to understand the logical thread by which we get to where we are. What has happened in the last 12 months that has logically prompted us, all the way through, to a stage where we are planting covert surveillance cameras in bedrooms and bathrooms in the name of some new qualitative development? That is the question. If it is sufficient, then the Government should have the capacity, the will, and the integrity to the people to make that blindingly clear—rigorously, necessarily clear—to everybody’s satisfaction. We are not convinced that that has occurred yet, so we have put a statement of purpose in.

If I try to follow that logic that I was talking about, I begin with the Prime Minister’s speech of 5 November and I take out two points. One is a game-changer to the security of New Zealand: “Much of that”—“much”; I grant you “much”—“is due to the rapid rise of the Islamic State of Iraq and Levant, or ISIL.” Further, he said: “Should they return to New Zealand fully radicalised and skilled in fighting, they would represent a significant threat …”. I recognise there are two components there: full radicalisation and fighting skill.

Suppose I said I have been to the Middle East. I lived there 3 years. I have been there within the last couple of years. I have been there. I have returned. I tell you now I am not skilled in fighting. I could declare to the Committee that I am a pacifist. I am not; but let me declare, hypothetically, I am a pacifist. I then say I am tempted to conclude, having listened to people around New Zealand, that humanity should live under a universal caliphate with strong sharia law. Am I then fully radicalised? Am I a fully radicalised pacifist? I recognise that I would not meet the definition of terrorism—presumably—but I want to know whether I am radicalised. If we are going to pass an intrusive State power bill and it rests on the concept of full radicalisation, the Government owes it to the people to also make clear what in the New Zealand Government’s humble view is full radicalisation. This is the basis of the Prime Minister’s speech.

We then think, right, on the basis of that we look to the bill. The bill itself was introduced initially by the Minister on 25 November. Presumably, it was introduced in his capacity as Minister in charge of the NZ Security Intelligence Service. In its enthusiasm, Hansard has written him up as Minister for Treaty of Waitangi Negotiations and there may need to be a correction, if that has not occurred yet, because that is a somewhat unfortunate Freudian slip. We look to the bill and we find no definition of “radicalisation”, no definition of “foreign terrorist fighter”, and no definition of the other phrase, “other violent extremists”.

We look to the explanatory note for help and the explanatory note says two things: the provisions of the bill reflect in part New Zealand’s international obligation to comply with United Nations Security Council Resolution 2178, which includes concern about people travelling to become foreign terrorist fighters and it urges States to restrict their movements. It says the provisions of the bill reflect “in part” Resolution 2178. So, if it is only in part, one would think that with a bill of this magnitude and import, the Government would say what the other parts of the reasons were. But it does not—it is totally silent.

We then look to the other part of the explanatory note, which explains: “The bill is a response to the rapidly evolving threat of terrorism both locally and internationally.” And here is the critical statement: “It introduces short-term measures allowing the monitoring and investigation of foreign terrorist fighters and other violent extremists, and the restriction and disruption of their travel.” That is the statement of purpose—the nearest thing we have in the bill. It is not defined. That is the statement of purpose. The two concepts are not defined.

So the Green Party feels the need to have a statement of purpose with a definition in each of the three bills that would read as follows. The purpose of each bill is threefold: one, it meets the obligations of Resolution 2178 “to combat threats to international peace and security caused by terrorist acts including those perpetrated by foreign terrorist fighters;”. That is word for word from Resolution 2178. The second one “ensures that such action by New Zealand remains consistent with its obligations under international human rights law,” and refugee and humanitarian law. That is there in Resolution 2178. It is acknowledged in passing in the explanatory note. It is not in the context of the bill. It is not in the text of the bill. The third one “ensures that such action by New Zealand is not associated with any religion, nationality, or civilisation.”—the same thing, taken from Resolution 2178.

That gives a degree of balance in the bill. You are meeting the obligations under Resolution 2178, you are remaining consistent, hopefully, with all our human rights obligations, and you are ensuring that the action does not cut across any actions associated with religion, nationality, or civilisation—and that is a trifold balance in the bill that is currently lacking. Then there is new subsection (3), defining the “foreign terrorist fighter”, which is taken verbatim from Resolution 2178, as a person who travels to a State outside New Zealand for the purpose of perpetrating, planning, or preparation of a terrorist act, or of providing or receiving terrorist training, including in armed conflict. We seriously recommend that consideration be given to that.

There have been quite a few issues raised in the debate this afternoon. I speak first on the passport issue, which seemed to slip through the conversation in the Foreign Affairs, Defence and Trade Committee—kind of under the radar. It was not an issue of great debate, yet the issue was raised—and it was raised again quite strongly by the honourable member—that we are asking in the Countering Terrorist Fighters Legislation Bill to extend our right to remove a passport from 1 year, which it is currently, to 3 years.

I asked numerous times whether we were not already complying with our requirements to the UN Security Council Resolution 2178. I was told repeatedly that, yes, under current law we comply with the resolution. We are prohibiting the movement of terrorist fighters, we are prohibiting them from leaving our country if we know that that is their intent, and we are prohibiting them from moving across borders in different parts of the world. That legislation exists already.

When the honourable Minister in charge of the NZ Security Intelligence Service said how sensible this legislation sounded, I had to agree with him at the time because he is such a sensible-sounding member. But when you actually ask the question whether that compliance already exists in our New Zealand law, then you have to ask where the sense is. How is it sensible that we now remove the right of New Zealand citizens to have access to their passport for a period of 3 years, when in the select committee it was identified and discussed that already there are a very small number of individuals whose passports have been removed where that action has been taken? But it was also noted that at no point has it been necessary to extend that period of time. At no point has the SIS come forward and said: “We need more time. We need to extend it further.” Where is the sense in that?

Dr Kennedy Graham was speaking just now about our compliance with UN Security Council Resolution 2178, and I acknowledge that, yes, we do comply. We already comply. But, actually, what was noted there also was that the legislation spoke of only that part. The legislation made reference to “a part” of the resolution. There are several other parts that ask this nation, this Government, to please take account of its citizens’ human rights and their rights to privacy. That is also in the resolution. It explicitly states that it explicitly expects Governments to take consideration of individual human rights and privacy. It even speaks further about the practice of undermining those rights, leading to radicalisation, and that is something that we absolutely must avoid.

At the moment with the rhetoric that is being used in the presentation of this bill to the New Zealand public, and the rhetoric that is being used to present this bill to the members of the House, we are radicalising a minority group within this country and, in fact, we are already not complying with the UN Security Council Resolution 2178. We are countermanding the requirements there already.

I just want to add my statement around the definitions of terrorism, the definitions that have been referenced in the legislation. It has already been acknowledged and it has been said very eloquently—and I am adding my voice and the voice of New Zealand First to this conversation—that, actually, there is no sensible definition of “terrorist”. “Freedom terrorist fighter” is not even mentioned in the legislation apart from the title. The ludicrous statements and the use of reference to legislation where we have had members of this House investigated by the security agencies under those current definitions seems to be counterintuitive, and not just that, but undermining the democracy and the human rights of New Zealand citizens.

We are not clear about what defines a terrorist. We are not clear on what “contributing to” might look like. We are not clear on what—

I just want to invite the Minister in charge of the NZ Security Intelligence Service, as Kennedy Graham has just done, to reply to questions about Supplementary Order Paper 42, which Kennedy Graham has put forward. We have, obviously, seen it only recently, and in some ways it is a function of the way this has been sped through. We have not had a chance to perhaps look at these things because they have been contemplated, really, only over the last few days, but on the face of it I do not see it as being unreasonable. We do mention the Security Council Resolution 2178 in the commentary on the Countering Terrorist Fighters Legislation Bill. It is not mentioned specifically in the bill itself, and it would seem to me that, given that this is a narrow piece of legislation, it is there for a particular purpose—in part to comply with Resolution 2178—and it would not be unreasonable to look at that seriously. The definition of “foreign terrorist fighter” that Mr Graham has put up comes out of Resolution 2178. It does not cross over some of the discussion we had at the Foreign Affairs, Defence and Trade Committee, which was around trying to redefine terrorism and terror as an act, which was a much bigger event that we will probably have to look at as a result of the bigger review we go into. Instead, this looks at and refers to just what this bill is ultimately about. I think that the Supplementary Order Paper is a thoughtful one and a good one, and I invite the Minister to perhaps take a call and give his thoughts on it.

In this legislation we are looking at a number of issues. There is the issue relating to the Passports Act, which people have spoken on. There are the amendments to the New Zealand Security Intelligence Service Act and the Customs and Excise Act. They are the three Acts that are being modified as a result of this bill. There are a number of contentious pieces of change that we have spent some time on: visual surveillance, warrantless surveillance, the passports issue, the interim nature of the bill, and access to the customs and excise databases.

I want to speak on the first of those I just mentioned, which is visual surveillance. It was put to us in the select committee that there was an imbalance or an inconsistency between the SIS and the police. The police have the ability to conduct visual surveillance; the SIS do not. That was in part, it was explained to us, because the New Zealand Security Intelligence Act was very old. When the SIS first came into being, a camera in somebody’s room would mean a 2-foot by 2-foot object in the corner, and, obviously, it would be noticed. That is not the case, obviously, any more. Cameras are invisible to people in their offices, their cars, their houses, or whatever, so people cannot observe them. We had a long discussion about this and the difference between the threshold that relates to the police and the threshold that relates to the SIS.

This is a point that was made by both the Legislation Advisory Committee and the Law Society: the police are given that authority by a consenting judge where the offence carries—and there was a bit of disagreement between the Legislation Advisory Committee and the Law Society over this—a term of imprisonment of between 7 years and 14 years. But it had to relate to a crime that it was seriously thought was going to be undertaken, or was in the process of being undertaken, and the seriousness of which brought a 7-year or 14-year imprisonment period. With the SIS it is somewhat different. The threshold is very different. It is about whether we suspect, or have an issue around knowing, that something unsavoury, if you like, might actually happen. We came to the position we did—which was to make sure that if this provision was going to be brought in, it was made very narrow and contingent on whether it related to terrorism or the conducting of a terrorist act—really to safeguard, I think, the definition that we were looking at, and the broader definition of security, which the SIS works under.

The broader definition for the SIS meant that it would look at, for example: “the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand’s international well-being or economic well-being:”, as stated in paragraph (b) of the definition of “security” found in the interpretation clause of the New Zealand Security Intelligence Service Act. We felt that that threshold was a low threshold to enable this broadening of powers within the scope of this piece of legislation. So what we were looking at in terms of this bill was to ensure that we took a narrow view of what the threat was and related any measures that needed to counter that threat by the SIS to only that threat, which meant that it related only to the threat or the carrying out of a terrorist act. We were very concerned that without the ability to have a look at this bill in a wider context, we would enable visual surveillance to take place under the guise of a threat of terrorism but that it would relate to the much wider functions of the SIS, and we did not believe that that was where we wanted to go.

Obviously, any visual surveillance needs a warrant. There is a part in the legislation about warrantless surveillance, and I will come to that later on in the debate. But I do believe that that means that a warrant has to go to the Commissioner of Security Warrants. It also has to go to the Minister, and in addition to that the Inspector-General of Intelligence and Security needs to be informed. So we have an ability to have those safeguards in this interim piece of legislation, which I think will enable the public to have much more confidence that we have got the balance right. In addition, once the information that is obtained under a warrant for visual surveillance has been used it must be destroyed. Once again, we have a safeguard that this will not be kept in perpetuity. The director of the SIS must be sure and have sufficient evidence to ensure that a warrant for visual surveillance is well and truly justified.

Visual surveillance, as many of the submitters said to us, is a far more intrusive form of surveillance than perhaps tapping somebody’s phone or looking at somebody’s computer. It means that there is a camera inside your house, your bedroom, your office, your car, or wherever. It therefore is beholden on us to make sure that the scope for allowing that to happen is made as narrow as possible and is very much related to the bill itself. I think we have ended up in a place where it does not allow a backdoor for visual surveillance to be used across a broad spectrum of the SIS’s abilities and responsibilities but is restrained and constrained to that alone. I do believe that we have struck a reasonable balance on that. I am sure that when the broader review comes into being there will be a very strong submission made by the SIS that its powers need to be enhanced with regard to visual surveillance. I do not believe that it is simply a question of saying: “The police have got it, therefore we should have it”. I do not believe that that was a good enough argument, which was made by the Law Society as well. The police and the SIS are operating in different circumstances, and on the basis of that we should be looking at the thresholds quite differently as well.

I just want to respond to a couple of the issues that have been raised. The first one that I want to talk to is the issue that Mr Goff raised, because we did have quite a lengthy discussion about this in the select committee.

Firstly, I just want to say that, in relation to a Kiwi wanting to leave New Zealand in order to go and engage in a conflict somewhere else in the world, the actual legislation is very specific when it refers to a terrorist act. Of course, we have got the Terrorism Suppression Act 2002, section 5—and I will come back to some of these points. We have got a very specific guideline that outlines for us very clearly what actions need to be met for an act to be deemed a terrorist act. Mr Goff raised a very good point. I think there is a wider issue that we should think about and reflect upon as a nation, and that is, do we want to be encouraging or allowing Kiwis to leave New Zealand to go and engage in any type of conflict, regardless of which side they may choose to participate on? I think he used Peshmerga in Kurdistan as an example.

One thing that I can safely say, having spent some time in the region myself—in fact, a decade—is that it is a very complicated situation that we are having to face. If there are 10 layers of complexity to it, then, after a decade of having been up there, I can safely say that I probably understand one of those layers. So a situation that you think on the face of it may present a certain set of circumstances is liable to change, and can change either quickly or more slowly over time.

I think a far better and safer position for us to take as a country is to discourage and try to stop any Kiwis leaving New Zealand to go and take up arms and participate in a foreign conflict. But if they do, then we have got very clear guidelines available to us under the Terrorism Suppression Act, which clearly show us what ingredients need to be met, or what threshold needs to be met, for us to understand clearly what a terrorist act is. I will mention maybe just a couple of them.

Under section 5(1)(c) of the Terrorism Suppression Act: “the act is a terrorist act in armed conflict (as defined by section 4(1)).” It is intended, under subsection (2)(a) and (b): “to induce terror in a civilian population; or (b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.” Subsection (3) states: “the death of, or other serious bodily injury to, one or more persons (other than the person carrying out the act): (b) a serious risk to the health or safety of a population: [or] (c) the destruction of, or serious damage to, property of great value or importance, or major economic loss”—and that is actually a very important one. There is a fair bit of debate around that as well, because I am pretty sure that here in New Zealand if we were to suffer a major terrorist act at, say, the Port of Auckland or the Port of Tauranga, then it is going to have a pretty significant negative impact on our economy and well-being, not to mention the general, huge negative impact it would have on our psyche as a country. Subsection (3)(d) states: “serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:”.

That is about half of the criteria. So it is actually very, very clear, if you refer to the Terrorism Suppression Act 2002, in terms of the threshold that has to be met to define someone as a terrorist. This bill is about stopping people leaving New Zealand to engage in acts of terrorism as a terrorist.

The other point that I want to make, very quickly, is that we talked about the visual surveillance powers—the warrantless powers—that have been given to the SIS. Maybe to give a practical example of what could possibly occur would be a terrorist fighter who has been active and, for whatever reason, has been able to buy themselves a ticket on a flight out of the Middle East and arrives in New Zealand. We have to be able to watch that person for the first 12 to 24 hours when they arrive in the country. [Bell rung] If we did not have that ability—

The CHAIRPERSON (Lindsay Tisch): Order!

Sorry, sorry. Mr Chair.

The CHAIRPERSON (Lindsay Tisch): You must go for the call.

Thank you, Mr Chair. If we did not have that ability, then, effectively, we could have someone who was in New Zealand—we did not know the full intent of their visit or their reason for coming to the country and we had no ability, actually, to monitor them properly or try to gather the intelligence that we required to make that determination.

I think this brings me back to the difference between the Search and Surveillance Act that the police have available to them and the visual surveillance powers that the SIS has. The SIS and the police have got very different roles. The police have to get a warrant through a High Court judge with the view to gathering evidence, with the view to taking a prosecution into our court system, whereas the SIS role is to gather information and gather intelligence to try to work out what the intent of that person is. At no time through that process are they intending to, or can they, prosecute that person in our court.

If during the course of that process it becomes apparent that the person is committing a crime, then, of course, there are abilities under the legislation to be able to engage the services of the police, and they would probably take over and then use their powers under the Search and Surveillance Act or the Crimes Act, or whatever they needed to do. I just wanted to be clear about the fact there are two very different roles here for our police service and for our SIS service.

Finally, I just want to reiterate that I have listened very carefully to New Zealand First and their leader, the Rt Hon Winston Peters. To be honest with you I was surprised. I thought that New Zealand First would have supported this bill. I do not know whether raising an old piece of legislation around sedition, which was removed back in 2007, is a good reason to ignore the situation that we have to deal with presently, but that was the reason put up. I am surprised, because now we are faced with New Zealand First and the Green Party not supporting this bill. Thank you very much.

I would just like to take a brief call on the parts of the bill that have been a particular concern to many submitters. I do want to refer to some of the submissions that I did not get to hear personally but did get to read at the Foreign Affairs, Defence and Trade Committee.

There seems to be considerable doubt and debate around some of the issues, for example, the definition of terrorism, and it is interesting just to note that there have been no convictions under the Terrorism Suppression Act so far. Section 5 of the Terrorism Suppression Act, which has been referred to a lot in relation to this bill, is defined in such a way that the Prime Minister may add organisations to the list of designated terrorist entities, and if he is satisfied that they have carried out a terrorist act, they can go on a list. So that is quite a broad definition and if you look at, for example, what happened in the 1980s with the African National Congress when they were fighting against apartheid and they bombed South African military buildings—I would never advocate violence, but are those people terrorists? So it is kind of interesting to see how broad these definitions can be and who will be captured. A lot of the submitters did not have confidence that the definitions and the way that these two Acts interrelate would actually target people who are genuine terrorists. They felt that there was real risk of it being broader.

It is an interesting debate as to whether we should support anyone leaving this country to participate in foreign war. We certainly support soldiers doing it in some wars where many of us do not see why. So we are not consistent here about who is a good killer and who is a bad killer. I think it is really important to talk about that as a society, rather than just identify some people who might go and fight for their country’s independence as being bad and other people who are fighting on behalf of the New Zealand Government as automatically being good. I think these things are superficial, which is why we would much rather have a far deeper examination of this whole topic than this rushed legislation.

Also, the Human Rights Lawyers Association made important points about Part 2 when it talked about visual surveillance. It described it as particularly “ … highly intrusive and [impacting] heavily on the right to privacy afforded under domestic law and international convention.” So it believes that before such powers are enacted, the SIS must show the need for them—i.e., the capability to perform existing duties is impaired by an inability to carry out such surveillance. I think that is quite an interesting phrase—the capability to perform existing duties is impaired by an inability. We have not seen the proof of that. I do not know whether it was described at the select committee, but, certainly, these submitters feel that it was not addressed and that there is a whole issue around creating a law for something when, actually, the SIS already has the capability to do a great deal of things, although “capability” is an interesting word. After many years of having been surveilled by the SIS and having read many reports about the SIS, I am not sure what it has ever done that seems particularly effective in this country. Maybe there is a whole seething mass of 60 years or so of dissenter behaviour that desperately needed to be followed, but a lot of it seems to have been fairly bizarre, to put it bluntly.

Not only the Human Rights Lawyers Association but also Amnesty International talked about the issues that are covered in Part 2 around surveillance, and it had some real concerns about those. It also had concerns about Part 1, in terms of amendments to the Passports Act. Its statement, which I wish to quote, is that “Compliance with all human rights while countering terrorism represents a best practice because not only is this a legal obligation of States, but it is also an indispensable part of a successful medium- and long-term strategy to combat terrorism.” So compliance with human rights, with the New Zealand Bill of Rights Act, and with all forms of international conventions should be absolutely fundamental, and we do not think that this bill has addressed those issues. We think that it is incredibly serious.

When Amnesty International talks about the special rapporteur on the promotion and protection of human rights, Martin “Scheinin-einin”—I have probably pronounced that wrong.

💬 Hon Phil Goff: Martin Sheen? Isn’t he an actor?

Scheinin—the special rapporteur—talks about the promotion and protection of human rights and fundamental freedoms as being really vital to actually preventing terrorism because we model and we stand up for human rights, and we acknowledge the human rights of people who could potentially become our enemies. That is why it is so important that this bill is not pushed through with such a hurry when these groups—these very, very committed groups with civil liberty expertise—actually raise really serious issues about the tests and about the conventions.

I want to take a quick call on behalf of New Zealand First to clarify our reasons for opposition and to be very clear, so that the public is very clear, about New Zealand First’s stand on this. I was not on the Foreign Affairs, Defence and Trade Committee but Mr Fletcher Tabuteau has briefed the caucus incredibly well on this very, very important bill.

With regard to the clauses, which are the substantive amount of the bill, and what the bill actually does, one of the things that New Zealand First has clearly identified—and it has been articulated by members of the Government—is that the majority of actions that this bill supposedly allows are already in legislation. They can already be used, if not by the SIS, then the SIS can go and see the police and the police can actually go and arrest people. Therefore, there is no need for those clauses; they can already be used.

That takes us down to two clauses—two clauses—that are not there. One is the passport clause, which we have already heard about, which is the extension from 1 year to 3 years. What we know—we have already heard it from the Labour Party, from the Green Party, and from New Zealand First—is that the ability to withdraw or cancel somebody’s passport for 1 year can be renewed at the cost to the State, as opposed to the cost to the citizen, to have to fight to get their passport back, should it be cancelled for 3 years. So, in our view, there is a movement of cost here—prove yourself innocent rather than the State having to prove you guilty. But the State has the ability to cancel a passport for 1 year and to roll it over, and it has never been extended—it has never been extended. That was the question asked and that was the question answered, and the chair of the select committee knows that.

So let us just remove the fact that we do not need the 3-year clause around passports because we have this other ability. What are we left with? We are left with video surveillance. We are left with the single thing that is not covered in any other piece of legislation, which the bill says is required to protect our citizens. That is a major issue for New Zealand First, particularly when part of that—let us have video surveillance—comes down to “trust us”. Trust us because the inspector-general has increased powers. And yet New Zealand First asked for an oversight committee made up of senior politicians to be able to double-check that within 48 hours. If you have a look at the supposed increased powers of the inspector-general, she can go and report to the Minister and to the Prime Minister, but if they refuse to accept her recommendations, she can go no further.

So it is hardly—hardly—about trusting the inspector-general; it comes back to trusting the Prime Minister and the Minister. That in itself is an issue—the widening video surveillance of your citizens. We now hear that there was a review of this to create this bill—

💬 Mark Mitchell: We’ve got the most transparent system in the world.

And let us keep it that way, Mr Mitchell. Let us keep it transparent and let us be honest with the people of New Zealand, shall we? Let us be honest with the people of New Zealand. There was actually a review done that nobody knew about but, apparently, the Government did. During the election period there was a review done that has now, apparently, informed this bill, but nobody knew about it. This bill arrived after the election and the words “trust us” were used. The words “trust us” were used. We will not trust it.

There is a review to go forward next year—and there is another review. The fact is that every single thing that this bill asks to be done can be done, except video surveillance—and there is a review next year that should take the proper course and allow the New Zealand public to truly, transparently, and honestly look at what we are being asked to pass here about their rights. New Zealand First will not curtail that process. We will not support this bill until that full review and video surveillance are fully discussed.

I would, first, like to just pick up on a couple of points that the chair of the Foreign Affairs, Defence and Trade Committee, Mark Mitchell, made. He said that the guidelines for what constituted terrorist activity were clearly set out under section 5 of the Terrorism Suppression Act 2002. I have to confess to having had some involvement with that Act and I do not think we did set it out anywhere near as clearly as it needs to be. In respect of a “terrorist act”, if I give just one example, section 5(2) defines it as: “An act falls within this subsection if … [a group tries] … (b) “to unduly compel or to force a government or an international organisation to do or abstain from doing any act.”

I guess, if I was going to fight alongside my family in Aleppo to stop President Bashar al-Assad from bombing my family’s home and slaughtering the people, I would come under the definition of terrorist, unless—and maybe the Minister in charge of the NZ Security Intelligence Service can give me some comfort in this—it is defined as a situation that occurs in a situation of armed conflict. So I think we do need some clarity around that. I am personally not satisfied with the contemporary relevance of that definition. I do not think it is anywhere near tight enough, which is why, if we cannot do it in this bill, I would like the Minister to look at it in terms of the review of the legislation next year.

The second thing in relation to Mark Mitchell’s point is that he raised the question: “Do we want to encourage Kiwis to go and participate in a conflict?”. I suppose my answer would be the same as the member’s—no, I would not actually want to encourage my kids or my nephews or anybody else to go and fight in that sort of armed conflict. But that is the wrong question. The question is: should we, as the Government, give ourselves the right to prevent them from going to do that? That is a much more difficult question. The answer that I give to that question is no, unless it is a terrorist activity.

I want to pick up the key reason why Labour is now actually supporting this legislation, which is the changes that have been made under visual surveillance and the emergency warrantless surveillance that this bill allows. When this bill came into the House the scope for what the SIS could do with these two powers—visual surveillance, which is incredibly intrusive—my colleague said it could be a camera in the lounge, in the living room, or it could be in the bathroom or the bedroom, as well. It could pick up people who are independent of those whom you might want to surveil. I would not want a camera in my house, and nor would you, Mr Chair. So you need to be very careful about how you would give that power.

Under the bill as introduced, as the Law Society pointed out, translating the threshold for visual surveillance that already exists under the Search and Surveillance Act for the police to the SIS would “impose too low a threshold for the authorisation of visual surveillance … the threshold for visual surveillance is substantially lower than that which applies to the Police under the [Search and Surveillance Act]”. So we were faced not with equalising a power for the police and the SIS but with giving a power to the SIS that had to meet a much lower threshold, and that clearly was never going to be acceptable to us.

The solution, in fact, in this bill was to take out the low threshold that was authorised “for the detection of activities prejudicial to security”—well, that is very wide—and “for the purpose of gathering foreign intelligence information that is essential to security;”, which is equally wide, and to translate it to just looking at the scope of a “(i) terrorist act; or (ii) facilitation of a terrorist act;”. So we have brought that scope for visual surveillance right down to what this bill is apparently about, given the explanatory note on the bill as introduced.

Likewise, we have required that the Director of Security “must provide a copy of the visual surveillance warrant to the Inspector-General.” That is new. So we are bringing the inspector-general in to have scrutiny and surveillance over the SIS’s visual surveillance. If I was to make another comment to the Minister in the chair, Christopher Finlayson, I would say that an important part of the review that is coming up would be to increase the independence and powers of the inspector-general. I think that for the first time we are seeing an inspector-general who actually can act independently. Yet when we received a briefing from the inspector-general, she said that her role was to advise the Minister, which it is, but we would like to have it made absolutely clear that the inspector-general sits to one side and independently makes sure that the Minister and the commissioner and the Director of Security are all doing their job under the law and are not in breach of the law.

The other thing that we did—and nobody has mentioned it in the debate so far—is to increase the penalty for knowingly failing to comply with section 4IB(10), in clause 9 of the bill, from a $1,000 fine to a $10,000 fine. I think that is really important.

I guess my even bigger worry was the concept of having warrantless surveillance. One of the things that you can take some comfort from is that at the moment, before the SIS intrudes into your life with surveillance by means other than visual surveillance, there needs to be a warrant, and in a domestic case that warrant has to be agreed to by the Commissioner of Security Warrants, who is a High Court judge. But, again, we have a situation where, under the bill as introduced, this power of warrantless surveillance was going to come in with a much, much lower threshold. The Law Society said that when the police use warrantless emergency surveillance, it is to follow up any type of serious offence punishable by a term of imprisonment of 14 years or more. So when the police exercise that power, they have to meet a whole series of prerequisites and it has to be for the most serious forms of crime. As the Law Society pointed out, if you gave it to the SIS “neither the commission of an offence, nor a risk to life or safety, feature in the proposed NZSIS emergency surveillance provisions. By contrast, the only element relating to establishing urgency/emergency is that delay must be likely to result in a loss of intelligence.” That would have been ludicrous. You would have been giving incredibly intrusive powers that were not subject to the normal controls to the SIS, for a very, very low threshold. So, once again, we have narrowed that to simply looking at a terrorist act or facilitating a terrorist act. That is the critical change that has been made in this legislation.

We have also cut down the hours of warrantless surveillance from 48 to 24, which is quite important, and again, at each point, we have given direct power of oversight to the inspector-general. In the original bill there had to be an agreement to pass it to the inspector-general; now the inspector-general automatically has the power of oversight. I think those changes are really important. They are the difference between our not being able to support the bill and our supporting it.

The other thing is that these powers are meant to be used incredibly rarely, but how do we know that they will be? The director is now required to report, not annually—because if you report annually, it could be 18 months after the event—but every 6 months, and to bring it down to the actual time bands, the period of time, that the authorisation was in place. I think those changes are important.

I hope, Minister, that they are carried over into the review because, although I am assured by you that you want a consensus-style approach to this, I picked up a comment by the Prime Minister where he said: “Well, we haven’t got these powers, but we can broaden the powers after the review.” Well, that smacked of incredible arrogance, I have got to say, and I am worried about that. I hope that we can do the sort of exercise that we all did on the select committee, which was to look at the legislation properly and work out what is necessary for the protection of New Zealanders—for both their safety and their right to privacy and other rights.

As a final point, can I ask the Minister to consider Supplementary Order Paper 42, which my colleague Kennedy Graham has put before the Committee. On a first reading of it, it seems to me to be reasonable. It talks about meeting our obligations under Resolution 2178, it talks about ensuring that we remain consistent with our obligations under international human rights law—I cannot see any problem with those two things—and it defines a “foreign terrorist fighter”. So I would be interested in the Minister’s response to what I believe is a very genuine effort on the part of Dr Kennedy Graham to bring the definition down to something with greater clarity and greater certainty. So can the Minister please reply to that point when he takes the call.

I am going to take only a short call at this point because I really want to carry on the discussion around the debate over the definition of a terrorist act or a terrorist or a freedom fighter. It has been a while, actually, since I stood in this Chamber and I have just been going back through the Hansard—not something you do lightly, or voluntarily—of 2007, when I spoke on a number of bills such as the Terrorism Suppression Amendment Bill and, through the Crimes (Repeal of Seditious Offences) Amendment Bill, the repeal of the seditious offences legislation. It is clear that every time we get into discussing these matters, there is always the question of how we define a terrorist and how we define a terrorist act. How can we assure ourselves that we are not catching people in legislation that we have no intention of catching? I think it is pretty fair to say that one man’s terrorist is another man’s freedom fighter.

Keith Locke was famous—or infamous, depending on which side of the political divide you sat—for a very romantic article that he wrote about Pol Pot coming in to the capital of Cambodia, waving his pistol in the air, firing a shot, and drawing the crowd’s attention to himself as he liberated—as he liberated—those poor, sorry people. Of course, Pol Pot proved not quite to be the freedom fighter that Mr Locke, in his days when he was writing for Salient, thought he was, and he tried desperately in this Chamber on many occasions to stop us from referring to that article. In fact, I used to keep a copy of it in my drawer here so that I could always remind him: “You know, sometimes you get it wrong, Keith.” Pol Pot was not a nice person. I would also point out that there was a chap by the name of Mugabe. The only person who had it right, whom I can recall, was Robbie Muldoon. He said: “He was a terrorist, he always has been a terrorist, and he always will be a terrorist.” History, unfortunately—

💬 Hon Phil Goff: He said the same thing about Nelson Mandela.

Well, let us be careful not to go there, because, like I say, one person’s freedom fighter, Phil Goff—you know—is another person’s terrorist. Having seen photographs of men whom I served alongside in the Middle East who were part of the SAS and the Rhodesian fire force, and having seen photographs of bodies used for bayonet practice by terrorists, it leads one who was in uniform to a quick conclusion that the people who carried out those acts—complete with their necklaces and the petrol contained inside the tyre, burning people to death with their hands and knees tied—could quite easily be defined as terrorists, Phil. They were from the African National Congress.

💬 Hon Phil Goff: Have those who slaughtered people—

Phil, you have had about five calls. I am just going to say that some of us still look upon those acts as pure acts of terror designed to terrorise people into accepting a new political order, and I do not care how fancy or how lauded the name is today—those necklaces were acts of terror. Bayoneting the workers of a farmer in the bush of Rhodesia was an act of terror.

I come back to the debate that we will always have and I am going to say to the Minister in the chair, Chris Finlayson, and to the chair of the Foreign Affairs, Defence and Trade Committee: give us a sense, because at some stage someone is going to be looking at Hansard when some poor unfortunate chap—he might be a guy who has served with the New Zealand SAS, he might be on circuit, having taken leave without pay or a discharge from the New Zealand army, or he might have gone across to assist some family in Ukraine against the Russians, or, might have gone across to Oman. We actually had three mercenary battalions in Oman, and Phil loves to get all passionate about mercenaries. We used mercenaries over there as paid employees of Sultan Qaboos to do the right thing for that nation and to act in defence against the wrong things being done to it. We had occasions on which some of those chaps from Balochistān would come to us and say that they had problems at home, and that bandits and people were raiding their—

The CHAIRPERSON (Lindsay Tisch): Can the member—it is interesting, with your experience—

I know it is.

The CHAIRPERSON (Lindsay Tisch): I know, but when we are in the Committee stage it is about what is drafted in the bill, so I will ask the member to come back to that.

What is drafted in the Countering Terrorist Fighters Legislation Bill is a continual referral to a definition of terrorism. What is confusing for some people, and hence an amendment is on the Table today, is that some people disagree. What I would like to see in the bill, or even in Hansard today, is some statement that says that these people are not included, and that it is not the intention to capture, under this legislation, New Zealanders who are going to fight people who deserve to be and need to be fought, whether it be in Ukraine or any other part of the world.

I just plead to your patience and take this time to acknowledge the chairman of the Foreign Affairs, Defence and Trade Committee, the members of that select committee, their efforts, and their work. I acknowledge that on the other side of the Chamber there were some hard questions asked. I acknowledge especially the work of those of my peers sitting on the left-hand side of the table who would constantly and diligently dig and try to understand what the Government was trying to achieve. We speak today of compromise but I would put it to the Committee that no compromise has been reached. There has been no compromise on warrantless surveillance. There has been no compromise on the use of video surveillance. There has been no compromise on access to passports. There has been no compromise on the access of the SIS to the database of our customs agents. There has been no compromise as to the oversight of the Inspector-General of Intelligence and Security. Her role remains the same.

Specifically, for example, we talk about warrantless surveillance. We have already had quite detailed discussions about it, and I acknowledge that the definition has been refined. Mr Mitchell spoke about the straightforward nature of reading the Terrorism Suppression Act, but I put it to you that although it is straightforward to read from the page, it is another thing to interpret the intent of those words and exactly what it is they are trying to achieve. When we come to the conversation around a compromise, actually, in my humble opinion, from my time on the select committee and from the numerous submissions I have heard, no compromise has been reached. We will still have this warrantless surveillance and we will still have video surveillance.

On video surveillance, the advisers spoke about how we are using chunks of legislation and we are pulling them together to make this omnibus legislation straightforward and robust, in that there is an existing template, and therefore we should be satisfied that it is robust. However—and this was spoken to by numerous members in the Committee already—the threshold for video surveillance for those other members of law enforcement agencies, as opposed to surveillance and information-gathering agencies, is so much more rigorous. I put it to the Minister that although we must never confuse the roles of our law enforcement agencies and the roles of our surveillance and information-gathering agencies, we have had it put to us—it has been argued and it has been put to the public—that there is a sense of urgency, that we know something is going to happen, and that we must react to it. So I simply ask the question: under the Search and Surveillance Act the police already have these rights—

💬 Dr Kennedy Graham: I raise a point of order, Mr Chairperson. I am sorry to interrupt my colleague and I do not wish to shatter the crystal that was prevailing in the select committee, but correct me if I am wrong—my understanding is that officials are to relate only to the Minister in the chair and not to other members of Parliament.

The CHAIRPERSON (Lindsay Tisch): I am sorry. I hear what you say, and that is correct. All right—we will not do it again.

What I was saying was that there is almost an argument that we are at a stage where there is a supposed clear and present danger. Those words were not used; those are my words. I concede that point. But if this is the case and we are in such a state and if this is so urgent, then the police have the right to do what it is we now ask of our SIS agency. Given the nature of the process we have been through, and given the lack of voice from the New Zealand public—actually, I put this to you. During the select committee I mentioned how there were some robust questions asked, even from those on the Government side. What actually seemed to be the most common answer—and it was an answer said with a level of frustration and disappointment—was that, in fact, we cannot answer your questions. The submitters told us quite openly, when we asked them: “What would you do? How would you interpret that? What do you think would happen then?”. The submitters replied quite clearly and with a tone in their voice: “You have not given us enough time to consider the implications and the ramifications of what it is you are asking.”

There is no compromise reached in this Committee today. Everything that was in this bill in its original form will come to pass, albeit with different words, but the outcome will be the same. I will just use the rest of my time to say—I have made a note—that it has been commented on by the media about the increase in the powers of the inspector-general. I just want to make it very clear to the New Zealand public and to the members in the Chamber today that the powers of the inspector-general have not changed due to this legislation. This was not within the purview of the select committee or of this piece of legislation. What was increased—and I acknowledge the efforts of the members across the way there—was not the powers of the inspector-general but rather the obligations of the Minister in charge of the NZ Security Intelligence Service and the Director of Security, and their obligations to the inspector-general. I acknowledge that that created an element where reporting and the submission of information to an independent body were required.

But this conversation about the role and the responsibilities of the inspector-general has come up in this House before. The inspector-general herself described her role and her job as a role that is for the benefit of the Minister. How can we then say that the inspector-general will hold the Minister to account, when under the legislation for that exact position and by her own words she exists for the benefit of the Minister? She will come back and say “You have done wrong.”, but she will say this to the Minister who has done wrong. She will report back to the very person who is liable and must be held to account, albeit along with the warrants officer. This is what this legislation is saying. This is what the clause will tell her to do.

Then we spoke about her reporting powers and their public nature and how we are publicly accountable. Again, her own words were that the reports are reduced and cut in such a way as to not give away State secrets. That is absolutely right. There might be ongoing cases where we cannot compromise the missions of our security agents, and we would not want them to do that. We need them to get the bad guys—we do. But we are not achieving what we set out to do. The inspector-general gave eight recommendations, I believe, in her latest report. Those recommendations were taken on board by the Minister and we are informed that they will be acted upon. That may be precedent, but it does not mean that in the future the Minister will not simply say: “Thank you for your recommendations. I choose to ignore them, and we will carry on as we currently are.” Thank you.

I rise to take a call to comment on and to rebut some of the comments being made by New Zealand First, because I believe that the views expressed by Tracey Martin are somewhat misguided and very different from the very specific advice that the Foreign Affairs, Defence and Trade Committee got during its consideration.

I want to refer members to the departmental report. I think that Mrs Martin will probably enjoy reading a number of the clauses in this departmental report because they do dispel some of the myths that have been spoken about, firstly in the submissions and then in this Chamber.

There is a strong view held by some—and Mrs Martin expressed it—that the police can simply be called on by the SIS to exercise warrantless surveillance on behalf of the SIS. Well, that simply cannot happen. In 1956 the SIS was separated from the police. The SIS and the police have very separate roles to play in our country. The police are all about enforcing the law. They are all about ensuring that crimes are detected and that people are put before the courts for those crimes. The SIS’s role is very different. The SIS’s role is to ensure that New Zealand’s security is taken into consideration and that there are detection powers in place so that New Zealand’s security can be protected.

There is a good section in this departmental report that points out that “The NZSIS Act expressly states that it is not a function of the NZSIS to enforce measures for security. NZSIS consequently does not detain people or bring prosecutions. Investigating and bringing prosecutions for criminal offences, including terrorism offences is a function of the Police.” The very reason why this bill is here is that there are instances where New Zealand’s security is at threat and the New Zealand SIS does not currently have the powers to conduct surveillance in a timely manner to keep New Zealand safe.

💬 Tracey Martin: Video surveillance.

No, Mrs Martin, you are incorrect. You are incorrect—sorry, Mr Chair, the member is incorrect. The police cannot undertake that power on behalf of the SIS. The police and the SIS have very different roles to play, and that is an important point.

I also want to refer to the comments that she made about the passport provisions. She is of the view that passport provisions in this bill are insufficient and unnecessary. There are also some very good comments in the departmental report that highlight the advice the select committee received—advice that Mr Tabuteau could have passed on, if he wanted to. Some are of the view that the passport changes are too lengthy—that there should not be the power to cancel passports for 3 years.

The very important comments that we received from the Department of the Prime Minister and Cabinet officials were that passport cancellation for 1 year is inadequate in some cases because individuals continue to remain motivated to travel. They also go on to say—and this is a very important point—that “Deferring notice of passport cancellations was considered justified in cases where notifying the person concerned could jeopardise the intelligence operation and in some cases increase the threat to public safety.” So everything you do with the legislation is about balancing the rights of individuals with the need to ensure New Zealand is kept safe, to ensure that New Zealand’s threats—which are out there and they are very real—are kept contained.

If there is a possibility that initiating further action under the existing sections of the Passports Act could endanger a security and intelligence operation, could increase the threat to New Zealand, then I do believe that there is justification for the Minister of Internal Affairs in certain extreme circumstances to cancel a passport for 3 years.

I, finally, just want to point out the changes that were made around the Inspector-General of Intelligence and Security, because I do not think they can just be glossed over. When the bill was first sent to the select committee, the inspector-general very much had a role of receiving information once unwarranted surveillance was undertaken. The committee mulled over this quite a lot. We were very firm in the view that the inspector-general’s role should not simply be one where she receives reports when the unwarranted surveillance power is initiated but, in fact, she should have the power to investigate. Rather than just the inspector-general initiating investigations on her own behalf, the legislation itself should say that the matter be referred to her for investigation. It is a very important point, because simply receiving advice that unwarranted surveillance powers have been used is very different from receiving that advice and being required to investigate.

It is important that we give New Zealanders confidence that if these powers have to be used, there is sufficient monitoring over the top. That monitoring is by way of the inspector-general. If this bill goes through, she has to investigate when that power is used. Additionally, there was concern that if the destruction of materials when they are no longer required does not take place, that, first, the fine is insufficient, and, two, there needs to be additional monitoring around that.

The committee also inserted clauses where the inspector-general is required to investigate if any matters are not destructed and if any matters—

💬 Tracey Martin: Are they shared with the “Five Eyes”? Are they shared with the other members of the “Five Eyes” and then destroyed?

I cannot hear what she is going on about. The powers around the inspector-general were increased in that matter. We also increased the fine that is put in place.

We did consider these matters very seriously. I disagree fundamentally with Mr Tabuteau that the bill has not changed. It is very evident, if someone goes through this bill, that a lot of compromise was discussed here. A lot of changes to the bill have been made—changes that go so far as to get New Zealand’s main Opposition party coming to the table and saying yes, these powers are necessary for New Zealand’s security situation. They are compromises that are designed to give New Zealanders confidence that whilst we look after New Zealand’s security intelligence information and take those issues seriously, we also ensure there is proper monitoring in place, and that is exactly what the changes here do.

I just want to pick up on some of the comments, really, add to what I said before about the clarity or the lack thereof in the legislation before us, and pick up from the Hon Phil Goff. In his comments he explored the issue of section 5 of the Terrorism Suppression Act. That, indeed, is critical. He was good enough to acknowledge its shortcomings and let the Committee—

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

What I was wanting to do before the dinner break was to essentially reinforce my earlier comments in the Committee about what we in the Green Party see as the need for greater clarity in the terminology of the bill, based on the understanding that this is a hugely important piece of legislation that is addressing constitutional rights to personal privacy and dignity of the individual, and to pick up on the issue of the definitions and have regard to what the Hon Phil Goff was talking about in the sense of a definition of terrorism.

If we look at the passage of the political narrative leading up to the bill and the initial legislation itself, we see there is a kind of mutation. The Prime Minister on 5 November spoke about national security, which, of course, is entirely valid, but when the legislation itself came into the House, it did not use the phrase “national security”. In fact, that does not appear, apparently, in New Zealand law anyway; the term “security” does. The initial bill focused, understandably, on the definition of security coming out of the New Zealand Security Intelligence Service Act. In the course of the Foreign Affairs, Defence and Trade Committee consideration, we narrowed that down to terrorism, and I think that was well informed.

But when we look at the somewhat tortured relationship between the definition of “security” and the definition of “terrorism”, we find that there is almost an inflationary interaction between those two definitions. Let me give an example of the difficulty we can get into. We are talking about countering foreign terrorist fighters and other violent extremists, and we are still struggling to understand what they are. The definition of the first concept is in Resolution 2178. It needs to be in the bill, and also violent extremists. But even if it is narrowed down to the definition of terrorism, let us look at what that could conceivably mean.

It is one thing to have a violent act of physical violence in New Zealand against New Zealanders; that, indisputably, is an act of terrorism. But the definition of terrorism in the 2002 Act goes way beyond that. If you look at section 5 of the Terrorism Suppression Act, there are five subsections, and section 5(1), the first subsection, identifies three alternative actions. That then leads into the definition in section 5(2), which is an elaboration of section 5(1)(a), and it contains two actions. Then section 5(2) requires outcomes that are identified in section 5(3), and those are five outcomes, and any one of those outcomes can obtain. So you have a permutation of five, four, and three outcomes. I am not a mathematician—no doubt there are some possibly scattered randomly around these benches—but my sixth-form imperfect mathematics would have that equalling somewhere around 120 potential actions coming out of the definition in section 5.

Let me just give you one of those 120. If I understand the bill correctly, based on an originating source of threat from the Islamic State of Iraq and the Levant in the Middle East, the intrusive powers of covert, warrantless 24-hour surveillance by the SIS in the bedroom of a New Zealander could be undertaken if there is a suspicion that that New Zealander is facilitating an action that is motivated by an ideological cause intended to exert undue compulsion on the Government to abstain from doing something that will result in major environmental damage. That, as I understand it, is one of the 120 or so possible acts of terrorism. If I have an ideological cause, an undue compulsion on the Government to abstain from doing something, and incur major environmental damage, that makes me a terrorist, and that warrants a camera in my bedroom.

I will address the point raised by Dr Graham in a minute, but first I want to address questions that have been raised a number of times today about who would be caught by the definition of “terrorist act” and thereby become liable for having their passports cancelled. A number of hypothetical instances have been raised. I tried to deal with them in the second reading speech, but I will just try to go through section 8A of the Passports Act and the proposed new schedule fairly carefully for the benefit of members again.

The first point that I think needs to be noted is that each and every case is different and turns on its own facts, so I cannot give absolute blanket assurances in the House about whether someone will or will not be caught. The second point to note is that the test to be satisfied before a passport can be cancelled has a very high threshold. There has to be sufficient information available to satisfy the Minister of Internal Affairs on reasonable grounds and the following conjunctive tests: that the person is a danger to the security of New Zealand or any other country because they intend to engage in or to facilitate a terrorist act, that the danger cannot be effectively averted by other means, and that the cancellation of the passport will prevent or effectively impede the ability of the person to carry out the intended action. All three limbs of the test must be satisfied before a passport could be cancelled. The third point is that the legislation does not prevent New Zealanders from travelling to these areas, although we would strongly advise against it.

That is the point I guess I was trying to make in the New Zealand Herald article that Mr Goff was referring to. I am not saying you cannot travel to these areas, but I am saying it is not the cleverest thing that you could possibly do with your life, assuming you will be able to hold on to your life if you go there. The only people who will be caught are those who intend to carry out or facilitate the terrorist act. Again—and it must be emphasised—when one looks at the ingredients of the clauses, sufficient information would be required to satisfy the Minister on reasonable grounds that the elements of that definition have been met. So, clearly, take this hypothetical: if someone from the Assyrian Christian community in Wellington wants to go to Mosul to see their family and to provide whatever support they can in a horrific situation, one could advise them against going but clearly there are no grounds to stop them going. Humanitarian workers and those who go to help their families in a dangerous environment will obviously not meet the test. If they join a group engaged in conflict, they will not be caught simply because of that fact—in fact, one could classify them in moral terms as freedom fighters. They must intend to commit or facilitate a terrorist act before their passport can be cancelled.

The power is used sparingly. My advice is that only nine passports have been cancelled under section 8A since 2010. The other point that I made in my second reading speech and in the introduction to the Committee stage this afternoon is that the exercise of this power is subject to appeal to the High Court and, with leave, to the Court of Appeal. The court can substitute its own discretion for that of the Minister to confirm, to modify, to quash the decision, so it is a real check and balance on the Minister’s decision making.

Mr Goff and Dr Graham raised some interesting points about the definition of “terrorist act”, and I hear what they are saying. We are not dealing with clause 5 as such in the debate tonight because it is already in the Terrorism Suppression Act, but I, for one, think that the definition of “terrorist act” is a challenging one. It has been drafted to meet our international obligations, and some amendments were made to it in 2007, I think, to make our laws more consistent with our international obligations. It is used in a number of statutes and not just for passport cancellation. Careful consideration will need to be given to any amendments to make sure we continue to meet our international obligations. I am perfectly happy to raise that with other Ministers, because I think it is something that could be included in a wider review of the criminal law applying to this area.

In that context I refer honourable members to Part 5 of the Crimes Act. I have talked about looking at the “Crimes against public order”. Treason is there. Seditious offences were once there, as Mr Mark knows, but it was repealed in 2007. You have got slave dealing, piracy, and so on. It is fair to say, I think, that Part 5 is overdue for consideration. Part of the review of what we are doing will involve looking at Part 5. In that context, one could actually take a good look at the definition of terrorism but not simply—well, the point I want to emphasise is that we have to be consistent with our international obligations, and the definition is used in a number of statues. So I am very happy to look at that because it is probably timely to do so.

The other point I would make about reviews—and this comes from section 21, I think it is, of the Intelligence and Security Committee Amendment Act 2013—is that what we are going to be doing next year, which has to be commenced before 30 June 2015, is a review of the intelligence and security agencies, the legislation governing them, and their oversight legislation. Some of the points that Mr Goff made about the Inspector-General of Intelligence and Security—I think they were very cogent points. All that is up for review in the period of 2015.

What I hope will happen is that both the reviewers and the Intelligence and Security Committee will be consulted. I will make a point of independently consulting Mr Goff and Mr Shearer on the reviewers, the terms of reference of the review, and so on. The reviewers will be able to look at this area in 2015 and then there will be ample time in 2016 for a full select committee process and then a principled debate on whatever emerges, with a view to concluding that before the sunset period hooks in, which will be, as has been confirmed in the legislation tonight, 31 March 2017.

I think that there is ample opportunity to have a good look at all these matters, both the sedition questions that was raised by Mr Peters—well, good luck to him in his quixotic quest to exhume sedition. Certainly in terms of Part 5 of the Act, the public order offences and the definition of “terrorist act”, all that can be looked at as a separate piece of work.

I would like to take a short call just to respond to some of the issues that have been raised around data acquisition and data retention. I would like to focus on the submission on the Countering Terrorist Fighters Legislation Bill from the Privacy Commissioner, who is, of course, that person who is empowered under the 1993 Privacy Act to be responsible for data access, data security, crossmatching registries, and that sort of thing. I would like to talk to what he states as his three areas of concern: one, the duration of visual surveillance warrants. We have successfully reduced that to 24 hours. Point two is the controls around warrantless surveillance powers. Again, we introduced counter-terrorism as being one of the thresholds that is now required. His third point, his third area of concern, was clarifying the continuation of controls around access to passenger name record data under the Customs and Excise Act. Can I point out that we also included in this agreement that the access agreement between the New Zealand SIS and the New Zealand Customs Service must have Privacy Commissioner involvement. So those are the three main areas on the front page of his submissions, and we have addressed them, I would have thought, rather well.

Could I pick up on another two points. The honourable member Phil Goff commented that, yes, the fines have been increased from $1,000 to $10,000 for data that has been acquired under visual surveillance that is not relevant to the detection of activities prejudicial to security or gathering foreign intelligence information that is essential to security. I think it is a really important point. The comment was made around intention: what is our intention? There is our intention right there—to be punitive around data that has been collected for a purpose that we are not wanting it to be collected for. Thank you.

Can I just start by thanking the Minister in charge of the NZ Security Intelligence Service, Christopher Finlayson, for clarifying those points. I think that is useful. “Committing or facilitating a terrorist act” I think encompasses it, and it also puts that explanation in context with his comments on the weekend. I think if we are required to look at this legislation in the context of a court case or whatever in the future, those points will be helpful in terms of where we want to go with it.

I also think that it would be useful to look at the definition of terrorism. It has evolved significantly with what has happened over the last few years, and I think the review, if it was able to look at that definition, would take into account many of the comments that we received in terms of submissions, and some of the questions we were asking ourselves as well.

I just want to comment on Mr Tabuteau’s contribution just before the dinner break. I have to say it has been one of the few times I actually wholeheartedly agree with the comments of Jami-Lee Ross. I do not think I could fault them, actually.

💬 Jami-Lee Ross: You’re hurting my career.

Yeah, I know.

💬 Ron Mark: A coalition coming up!

A grand coalition—somebody else is going to be squeezed out!

There were extraordinary compromises in this bill. When we look at the first bill that we were confronted with and what we have got now, we have got a much better bill, I think, and a much tighter bill. It is much more confined to what the issues were in front of us. Quite apart from the process, which we have made comment on before, I actually do believe that we have come a long way and we should actually acknowledge that. I think we have landed pretty well when we consider that this is a temporary piece of legislation that is meant to last for a pretty short period of time.

There are a couple of issues in and around that. I mean, there was a comment made by the Inspector-General of Intelligence and Security about her role being to advise the Minister. I actually think that the word “advise” is something we need to look at, because to some extent we see the Inspector-General of Intelligence and Security very much being the watchdog. In fact, we have increased that power within this bill—and I think Mark Mitchell mentioned this in his contribution—so that she has a greater ability to look into the various parts of what this bill is setting up to do. The “advise” word—I mean, it is not “facilitate”, “help”, or whatever you were mentioning, Mr Tabuteau. Actually, the word was “advise”. I think there is probably some clarity around that that the review could possibly take up as well.

I have to say again—and I think I said it in the second reading speech—that we were very impressed with the ability of the inspector-general to conduct her role effectively. She went into the fact that she has 24/7 access to the SIS and the Government Communications Security Bureau (GCSB). She and her team can look into any aspect of those organisations at any time, whenever they want. Some of the most top-secret issues will need to be cleared with the director, but otherwise they are free to do whatever they like. They will be up to speed and be able to do that by January next year. I have to say these were the changes that were made in the legislation last year, and they were very positive changes. But I do not really think they have had the air time that they really deserve. I think that in many ways, at the legislative level of the oversight of these intelligence committees—and I am not talking about the political level; there are massive problems there—we are very close to providing the degree of oversight that I think we need to have. I do believe that is very positive.

It was interesting that the inspector-general herself, in her submission, talked about the role that her counterpart in Australia has in looking at the various avenues of intelligence that they are able to look at. Whereas we are confined to the SIS and the GCSB, her counterpart can also look at the committee within the Department of the Prime Minister and Cabinet as well as military intelligence. So it is a broader role. We might want to leave that for a review, but, again, it is an issue that I think probably needs to be looked at in terms of the confines of that role and how that role takes place.

Having said all that, I think there was one area—notwithstanding the Minister’s explanation around terrorist freedom fighters, etc., and making those sorts of distinctions—where I do not think we quite got to a conclusion to the satisfaction of this side of the Chamber. We let it go because I think the other issues were, in many ways, more important. That area was the issue of the extension of passports being withheld from 1 year out to 3 years. I think we were unconvinced by the rationale of needing to have to extend that out to 3 years.

There was a lot of talk, as we went into the Foreign Affairs, Defence and Trade Committee, about somebody being rendered stateless if they got their passport taken away from them. Clearly, that is not the case. If you have your passport taken away from you, you are still a New Zealand citizen. You are not stateless. Likewise, if your passport is taken away from you when you are offshore, you still remain a New Zealand citizen. Although you might not have a passport, the Minister must, according to the legislation, provide an avenue—effectively, a straight-line avenue—for you to return to New Zealand; otherwise, that would be totally unfair.

But the issue of the extension out to 3 years is something that I think we were, as I say, unconvinced about, even after questioning both the director of the SIS and the officials from the Department of the Prime Minister and Cabinet. A passport can be withheld for 1 year. It can be done, without having to provide explanation, for up to 30 days. We accept that. Extensions of more than 1 year can be granted at the moment, with a High Court judge providing that extension. The High Court judge, obviously, has to be convinced that there is still evidence that this person will go off and be a terrorist fighter or commit a terrorist act if they leave the country.

The argument that was put to us was, well, sometimes these people do not necessarily show themselves. They might lie low and we might not have that evidential test. I think that is kind of going into grounds that I find are a bit dubious. Likewise, the other explanation given was that taking a passport away from somebody for 3 years or 2 years, or whatever, is somehow less problematic than doing it year after year after year—taking it away, then taking it away again; in effect, extending it and extending it. Again, I am not sure that I am particularly convinced by that, and it did not sound particularly convincing coming from the people whom we asked. Added to that is the fact that this legislation has a life only until April 2017. It is conceivable that in March 2017 you could withhold somebody’s passport for 3 years from that date, notwithstanding that the legislation might say something completely and utterly different. This is also a point that was brought up by the Law Society. We were not convinced that this was an area that we felt was particularly justified.

On the other hand, I will accept—and I think this is the reason why in the end we let it go through—that it is possible to make a submission to the Minister within 30 days. You can take it to judicial review, and if it goes to any more than 1 year, to possibly 3 years, the Minister is bound to go back to that person who had their passport taken and invite them to make a submission in order to be able to have their passport back. Notwithstanding that, I do think this is one area that we need to be taking a much better look at, and certainly a much better look at when it comes to the broader review that is coming down the track. Thank you.

I just wanted to raise a point that was brought up before the break by a member on the opposite side of the Chamber. The member spoke about the reasons why we need this 3-year extension to the passport cancellation process. He said that it might create some discord or upset the person involved, and it might pay not to tell them that their passport has been cancelled. But, actually, under this legislation the Minister must take all reasonable steps to notify the person that their passport is to be cancelled. They have a right of appeal process, which we are obliged to undertake. They cannot appeal if they do not know that their passport has been taken off them. It seems a bit nonsensical.

The main point I would like to finish our discussion on tonight is around the process of warrantless surveillance. Under new section 41B(10), inserted by clause 9, we are told that “As soon as practicable after the expiry of a visual surveillance warrant, the Director must ensure that any records resulting from the visual surveillance undertaken under that warrant are destroyed …”. We spoke about penalties if any data was retained unlawfully and inappropriately, and absolutely that must be the case. But under this current bill as it is written, and I draw the attention of the Minister in charge of the NZ Security Intelligence Service to it, this is “except to the extent that those records are relevant”. Actually, in respect of the process of destroying data and of destroying evidence that was collected without a warrant or that was collected without a warrant further pursued by the offices or the SIS, actually there is a clause in there that says OK, let us keep it. At no point before or after is a warrant issued to collect that data necessarily. It says that we can do this “to the detection of activities prejudicial to security”. I reopen this can of worms about definitions and terminology and ask the Minister to consider what is meant by “activities prejudicial”, to whose security, and also “to the gathering of foreign intelligence information that is essential to security.” Again, the question is what is essential and what is security?

For me, as an individual, this has been one of the biggest bones of contention. There is obviously a lot more. I do not think the compromise has been sufficient for the New Zealand public. But in this particular instance we are asking New Zealanders to accept that we will gather information on them, that we will keep that information and that data, and that we will never seek to apply for a warrant or subsequently be issued with one. This is of huge concern to me around people’s human rights and their rights to privacy. Thank you.

I move, That the question be now put.

The amendment set out on Supplementary Order Paper 43 in the name of the Rt Hon Winston Peters to Part 2 is out of order as being outside of the scope of the bill.