New Zealand Intelligence and Security Bill

on behalf of the Minister for National Security and Intelligence: I move, That the New Zealand Intelligence and Security Bill be now read a first time. I nominate the Foreign Affairs, Defence and Trade Committee to consider the bill. This afternoon I want to take the House through the key points of the legislation. Obviously, I am not going to have time to cover everything, but colleagues who follow me will outline key parts of the bill. The bill is the legislative response to the report of the first independent review of intelligence and security undertaken by Dame Patsy Reddy and Sir Michael Cullen. The report was an exemplary piece of work, and I want to thank those two distinguished citizens for producing it.

As recommended by the reviewers, the bill will replace four current Acts: the New Zealand Security Intelligence Service Act 1969, the Government Communications Security Bureau Act 2003, the Inspector-General of Intelligence and Security Act 1996, and the Intelligence and Security Committee Act 1996. If the bill passes, all legislation relating to the agencies and their oversight will, for the first time, be set out clearly and in one place.

The core principles underpinning the agencies’ performances of their functions are set out in clause 3. The agencies must act “in accordance with New Zealand law and all human rights obligations recognised by New Zealand law;” and, in the performance of their operational functions, independently and impartially, “with integrity and professionalism; and in a manner that facilitates effective democratic oversight;”.

I acknowledge the statements of the Privacy Commissioner and the Chief Human Rights Commissioner, who say this bill is going to be an improvement on the current legislative arrangements. I agree with that, and will now explain why.

The first topic I want to cover is the issue of what is called the “triple lock” and its relationship to warrants. For a start, we are introducing a concept of the triple lock for any activity concerning New Zealanders. That means a warrant must be approved jointly by the Attorney-General and Commissioner of Intelligence Warrants, with oversight provided by the Inspector-General of Intelligence and Security. Any New Zealand Security Intelligence Service (SIS) or Government Communications and Security Bureau (GCSB) warrant targeting a New Zealander will be subject to this core protection. This is in addition to the high bar for all warrants—that they must be proportionate and necessary. Under the new regime, New Zealanders will only be targeted on national security grounds, unless the person is an agent of a foreign power—for example, if a New Zealander was working for a foreign Government. This is a very important change from the current New Zealand SIS legislation, which allows New Zealanders to be targeted for wider economic well-being and international-relations grounds. Two of the three grounds for targeting people disappear.

This brings me to section 14 of the Government Communications Security Bureau Act 2003. The GCSB and the SIS will now be covered by the same warranting regime. It follows that section 14 of the current Government Communications Security Bureau Act will be repealed, as recommended by the reviewers. This section provides that the GCSB cannot intercept the private communications of a New Zealander for the purposes of intelligence collection, but, as the reviewers found, this section does not serve the blanket purpose some people have thought it does. The GCSB has always been able to target New Zealanders for its cyber-assurance and its assistance functions. Replacing section 14 with the new triple-lock protection for New Zealanders is a more coherent and robust safeguard for New Zealanders.

We have maintained the separation of the agencies in the warranting regime. The recommendations of the reviewers would have, in effect, merged the powers of the agencies. The Government’s view was that this would have resulted in a significant expansion of powers, particularly for the GCSB. In addition, given the distinct nature of the agencies, the Government considers it appropriate that they have different powers under a warrant. Under the proposed regime, the agencies will essentially have a common set of warrantable activities, such as a search, but different powers to put these activities into practice. For example, pursuant to a warrant, the SIS could enter a building or car to carry out a search. The GCSB does not have the power to do this, but could access an information infrastructure to carry out a search. As recommended, the agencies will also be able to apply for a joint warrant in appropriate circumstances.

The bill picks up the reviewers’ recommendations that the new legislation should contain a new tiered warranting system, and others of my colleagues will cover that proposal and the legislative response in some detail. One change I want to mention is that a warrant will be able to target a class of person, a thing, a place, a communication, or information, and this is necessary for the agencies to deal with situations of uncertainty. For example, it may be necessary to target a class of person or information infrastructures engaged in an illegal fishing operation because there may be an uncertain number of people on the fishing boat. The bill also allows for purpose-based warrants where it is not possible to identify a specific target. These will only ever be available where the objectives of the warrant cannot be accomplished through a targeted warrant.

The most important task for the Foreign Affairs, Defence and Trade Committee will be to receive submissions, and have a robust debate about the definition of national security—and some members have already referred to that following the bill’s introduction. The legislation adheres to the reviewers’ recommendation, but it is going to require some further thought. The Parliamentary Counsel Office and Department of the Prime Minister and Cabinet (DPMC) have both advised there could be some issues with the workability of what is now in the legislation, and I look forward to the committee’s views on this topic, but I want to signal now that I think the reviewers’ proposal is unworkable, and the officials’ alternative version—which is available on the DPMC website—could be a good starting point for the committee. The Government has adopted the reviewers’ proposal for the bill’s introduction solely so that the committee can consider the matter, rather than Ministers making a decision before introduction.

The new legislation includes explicit powers to access certain databases, recommended by the reviewers, such as immigration information. It also contains a framework and increased oversight for accessing information from other Government departments. I acknowledge the Labour Party’s concerns about direct access to births, deaths, and marriages information; the select committee can have a good look at that issue.

One important decision we have made that was not covered in the review is to repeal the current Privacy Act exemption that the agencies have and bring the agencies within the Privacy Act 1993, with carve-outs as appropriate. That is a significant step. There has been some discussion, since introduction, on the composition of the Intelligence and Security Committee (ISC), and I acknowledge what Mr Little has been saying. The Government has taken a reasonably conservative approach in this legislation because the committee is functioning well at present, and the select committee is best placed to consider questions relating to the ISC after it has heard submissions.

There are a number of other issues that will arise and we are certainly open to discussing them. I will leave it to others who follow me in the debate to cover some of the areas that I have not had time to speak about in my speech. I want to finish by reiterating the remarks of the Prime Minister, and also ones that I have made to date, about the importance of achieving a bipartisan or multi-partisan approach to this very important national security legislation. I thank members for their contribution to date. With those comments, I commend the bill to the House.

I acknowledge the Minister, the Attorney-General, who has just spoken. In particular, I want to acknowledge the efforts that he has gone to personally to discuss the matters raised in the Cullen-Reddy report and, as the legislation has been prepared, a couple of discussions that he has had with me and colleagues of mine from the Labour Party as he genuinely strives to achieve that bipartisan or multipartisan result on this piece of legislation. I acknowledge that. I do have some comments to make about the role of the Attorney-General in relation to some of the provisions in this bill, and I do want to say from the outset that the comments I make are absolutely no reflection on the Attorney-General, who has conducted himself, since he has acquired the responsibilities for these agencies, with considerable distinction.

In a liberal democracy such as ours, where we cherish freedom, including the freedom to dissent, and where we also cherish the rule of law, the question is always about where the balance lies between arrangements that maximise our freedom, which must, hopefully, be just about everything, but also the powers that are sufficient to ensure our security. That is where the debate on matters like this always lies: what it is that is going to mean that those who wish to express and exercise their freedom of speech and go about their lawful business can do so without interruption and without intrusion, but on the other hand accept that in the environment in which we live we do need to ensure that the interests of citizens, collectively and individually, and the interests of the State also need to be protected.

As the Minister said, this bill comes out of the Cullen-Reddy review—the first independent review of our security and intelligence legislation. The fundamental achievement of this legislation is that it combines multiple existing pieces of legislation into one single piece of legislation, which has the benefit of ensuring that the powers that are defined for the agencies are at least drafted in a consistent way. That is a positive development if we can achieve it. The development of the legislation to date—as so often happens when dealing with an issue or a requirement that develops over many years’ time, multiple pieces of legislation often conceived in different circumstances but all heading towards the same objective are drafted in different ways, and it is right that every now and again we step back to ensure that what is happening, or what is provided for in our legislation, is achieving what was originally intended, but without encroaching on citizens’ rights.

I do not argue, and have not heard any argument to suggest that we do not need agencies dedicated to the protection of New Zealand citizens, to the protection of the country’s economic interests, and to the preservation of a functioning democratic State. Those interests must be at the forefront. But the reality is that we do not live in a benign environment. We do have threats to our physical security, and they come from within and they come externally. We do have threats to our economic interests as well, and perhaps the single biggest class of threat we now experience is cyber-security, where not just public agencies but private companies and private agencies can come under threat from abroad because of the technology that now exists. If we are going to undertake the task of preserving and protecting our interests as a nation State, the citizens in it, and the economic interests within it, then it will be necessary to have agencies that have intrusive powers. But, as I began by saying, we must always ensure that that is in proper and appropriate balance.

The bill is a good start, and for that reason Labour will be supporting this bill at this reading, and we look forward to a good discussion and a good examination by the Foreign Affairs, Defence and Trade Committee. The bill is a good start, but there remain issues, and I am going to go through just a handful of them that we have at this point. The issues that I am about to adumbrate are not implied criticism of the warrant provisions and the safeguards, and the Minister talked about the triple lock—he did sound a bit like a window salesman, to be honest, when he said it. But this is not a criticism of those provisions. I think it is a helpful development and, in fact, the provisions as drafted are a greater safeguard than what exists at the moment, and we should be pleased about that.

It is also clear, given the setting that we are debating this in, that the beefed-up office of the Inspector-General of Intelligence and Security that we now enjoy has proven itself to be a good check and balance on the agencies and the exercise of their powers. We should be very proud of the work that that office has done recently. The reports that have been presented, I think, have been robust and thoroughgoing, and I think they ought to give citizens an assurance that there is at least a good check and balance in that regard. But, of course, we should not just rely on safeguards happening after the event. If there is an erroneous exercise of a power, and an undue or unlawful interference or intrusion on privacy, then we should not just rely on a process that happens afterwards. We need to ensure that what happens before provides safeguards as well.

There are a handful of issues that I want to just cover off. The first is the definition of “national security”, and the Minister has indicated that the Government’s position is to throw that open to the select committee to have a good examination and debate about it, which is certainly a useful approach. I actually thought that the Cullen-Reddy review got that about right—that there needs to be a level of specificity, but we do need to understand exactly what national security means, and what it is that we are protecting. That is absolutely fundamental in this bill, because the motivating objective to the powers being exercised is, in most cases, the protection of national security, so we do have to get that right.

But there are some obvious questions. What is a threat to the safety of New Zealanders? Why is it proposed that the Cullen-Reddy recommendations about tests of imminence and serious harm be removed from the definition as it appears in this bill? What is a threat to a New Zealand Government operation? Protests in the high streets of New Zealand may amount to a threat to the operations of at least a Government department, but that should not be a basis on which people are prevented from expressing their dissent, from expressing their opposition, or from showing protest. So the definition is vital. We do need to get it right, because it is so important to this piece of legislation.

The next point I want to make is in relation to warrants, and the Minister has talked about the three tiers, effectively. Bearing in mind that these warrants are to allow activity that would “otherwise be an unlawful activity” for an authorised purpose, this is where the rubber hits the road. It is possible for warrants to be issued subject to conditions—clauses 60 and 61 cover that off—but it does not indicate what those conditions might be. What sorts of restrictions could the Attorney-General and the judicial commissioner, either individually or together, where specific powers are being exercised—what conditions can they put on the warrants sought for? So we need to get clarity on that. I am particularly concerned about clause 69 and the urgent warrants, where a warrant can be applied for orally and, indeed, in very urgent circumstances by the Attorney-General alone—that can last between 24 and 48 hours. This is where, I think, citizens are entitled to not only be concerned but to ensure that the select committee gives very close and detailed examination to those powers.

I want at this point to raise one of the issues about the role of the Attorney-General. The Attorney-General is the Minister responsible for our Crown Law Office and is responsible for all of our Crown prosecutions and is often actively involved in prosecutions involving matters of public policy. So is it right that the Attorney-General should be the one exercising, in whole or in part, the power to issue a warrant that can lead to the gathering of information or evidence, which could lead to a prosecution that may then be under the oversight of the Crown Law Office? It looks to me, on the face of it, that there is a conflict there that is not justified in our form of Government, and I think that needs to be examined closely. It is interesting that the Chief Justice did not want serving judges to act as judicial commissioners for the very reason that she was concerned that those same judges would be rubbing shoulders with judges who will be hearing cases, potentially, involving evidence gathered on that basis. So I think we need some consistency there.

The next point I want to make is about access to data, and it is interesting that this bill reflects some modifications on the recommendations made by the Cullen-Reddy review, but I still do not see a justification for broad access to, for example, data about passports when the agencies—when they are seeking that information to clarify the citizenship status, or otherwise, of a named person—know that person and can apply for a warrant accordingly. I note, just in that regard, clauses 103 and 104 relate to access to databases, and that it is to be done through inter-ministerial agreement and the detail will be in those agreements, and we need some indication about what might appear there.

Finally, I just want to make the point about the Intelligence and Security Committee, because that is the political oversight, and I express now the views I have expressed publicly, about the Prime Minister or any Minister with ministerial responsibility for the agencies acting as chair of that committee. In other jurisdictions other arrangements are found, and I think that is fertile ground for the select committee to examine and for members of the public to express their views about. We know that agencies like the New Zealand Security Intelligence Service, like the Government Communications Security Bureau, and, indeed, the National Assessments Bureau are vital to protect citizens’ interests and a functioning democracy and that there are always going to be tensions.

I welcome this bill, I welcome the debate that we will get to have about it, and I thank, again, the Minister for the constructive approach he has taken so far in prosecuting this legislation.

It is my pleasure to take a call in this first reading on the intelligence and security legislation, and I particularly want to begin by endorsing the comments made by the Attorney-General in his opening remarks. I too want to acknowledge—and put it on the record—and thank Sir Michael Cullen and Dame Patsy Reddy for what I think was an excellent piece of work and a very well-considered, well-balanced piece of work. I think the fact that we are beginning this debate in this House with a broad level of political support really does reflect the quality of that report, and I do think it is important for legislation as important as this that we seek to achieve consensus wherever possible and that New Zealand feels that it has a good chance to test through these issues.

These issues are important. I know there are some in New Zealand who would like to believe that we can live in a world where legislation like this is not necessary, but, actually, the vast majority of New Zealanders understand and accept that this is a very real part of keeping our people and our country safe. But equally importantly, and, perhaps, even more importantly, because of that we have to have legislation that is very clear—there is no room for ambiguity or uncertainty as to how provisions apply. There needs to be absolute certainty around the scope of the powers, the authority that they convey, and the oversight of them, and this legislation, in my mind, undoubtedly puts us on a better footing than we have previously been on, as we have already had acknowledged by the Privacy Commissioner, as just one commentator.

The part I want to focus on in my contribution is not the issue of surveillance, which is the one that, obviously, takes up a lot of the public interest, but actually on the critically important function of the Government Communications Security Bureau (GCSB) around cyber-security. I think that in all of the talk around these agencies, this role really does get overlooked, and I think it is important that we reflect on it. As a Minister who has a very active role in policy around cyber-security, I think it is appropriate that I talk to it. Just by way of context, it is worth putting on the record for the House the incredible size and complexity of the cyber-security issue and the incredible damage resulting from the cybercrime industry. Whether we are talking about State-sponsored cyber-security attacks, whether we are talking about “hacktivism”, whether we are talking about what has actually become a vast army of entire criminal enterprises that provide entry to almost any computer system and that provide made-to-order stealing of information or the duplication of identities, this is a sector that I think most New Zealanders do not quite appreciate the size of.

Can I tell this House that cybercrime globally is now bigger than the global drugs trade. That is how big this is. We are talking about $600 billion a year in cybercrime, and it is growing increasingly quickly. Just by way of context in New Zealand, most members of the House, I am sure, will be aware of the issue of ransomware, which is particularly pernicious. It is when cyberactors get in, lock up your information, and then will not decrypt it without a payment. Just in this year alone, between the months of January to March—so just a very small period of time—we went from seeing ransomware being about 33 percent of all of the malware affecting New Zealand to being 93 percent. So the explosion in that area alone is huge. Just one of our telecommunications service providers told me that on average it is blocking 51 dedicated denial-of-service attacks every day—every day. And one of those attacks, in particular, was 20 percent of the capacity of its entire network. So we are not talking about small, isolated attacks.

I also have to tell this House how incredibly sophisticated these actors are. You may think “Oh, well I’m all right; I’ve got a password.” I was talking with a cyber-security firm here in Wellington just this morning, actually. We were talking to some of its penetration-testers, who specialise in providing services for businesses to understand where their vulnerabilities are. They were telling me that in all of the years they have been operating, across almost every type of business you can imagine—very large, very sophisticated businesses in New Zealand—there is not a single business whose network they have not been able to get full access to when they have gone in and penetration-tested it. So if we think this is just people around the edges who have forgotten to password their systems, we are absolutely wrong. This is incredibly sophisticated, and it needs a very, very high calibre of dedicated, unbelievably clever people doing it.

Most of that expertise resides within the GCSB. One of its great successes in recent times has been the development of Project Cortex, which involves a very clever shield, effectively, around our most important networks and our critical institutions of national importance, whether they be core infrastructure, core financial, or core Government. That has been very, very effective, in the time it has been running, in protecting those organisations against very—as I say—high calibre, sophisticated events.

The GCSB is also incredibly important in this space because cyber, of course, is global. We cannot just sit in New Zealand and assume it is all within our own borders. The GCSB’s ability to work effectively with our international partners is fundamentally important to our ability to protect New Zealand from cybercrime. This is not imaginary, it is not some sci-fi movie; it is happening every day. It is accelerating at rates you would not believe, and we have got to be in front of it. We cannot say: “Well, we’re at the bottom of the world; they’re not going to target us.” They can, they do, and it is the GCSB that is really very much at the forefront of understanding and responding to those very sophisticated attacks. This bill is an important part of maintaining the GCSB’s ability to carry out those cyberfunctions. It is not the only thing we are doing, of course. We have a wide-ranging cyber-security strategy, which I released with the Prime Minister recently, that goes through a number of initiatives, including standing up New Zealand’s first Computer Emergency Response Team, which the GCSB will be a part of.

But just as it is important in the roles of national security and surveillance, protection against terrorism, and all of the things the public more commonly associates with our intelligence agencies, we have to have clear, transparent rules of operation for the GCSB in relation to cyber-security. I want to just touch on a couple of the aspects of the bill that are relevant in this regard. The existing scope of the GCSB’s information assurance and cyber-security function is now going to be incorporated within the broader umbrella function of protective security, as the independent reviewers proposed. This also, of course, covers some of the SIS’s functions, such as security clearance vetting. In clause 15 of the bill we still, though, set out the detail of that information assurance and cyber-security function, and preserve the existing scope. Consistent with the clear decision of the Government as outlined by the Attorney-General, that we must maintain clear delineation between the agencies, the bill makes it very clear that only the GCSB is mandated to provide that cyber-security service as part of the protective security function.

The bill goes on to explicitly recognise that the GCSB can provide these cyber-security and assurance functions with the consent of affected entities, as it does with Project Cortex. But it also makes clear, and I think this is important to get on record, that any information that the GCSB obtains in the course of carrying out its protective security functions—and its cyber-security functions, in particular—if it needs to use that information for any other purpose it would have to go back and get a warrant.

This is not another way of getting information. Cyber-security information is collected and used for cyber-security purposes only. It cannot be used for other functions, and, if needed, would have to be sought under a warrant in the normal way, along the lines the Attorney-General set out. The GCSB is limited to the powers available to it in any warrant, where that is required. It makes it clear in the bill that the GCSB retains its existing powers to access information infrastructure as required, and, overall, I think we can be confident that the bill ensures that the GCSB will be able to continue to provide those very effective, very necessary information assurance and cyberservices.

As I said, when you are looking at an area like cyber-security, we cannot be left behind, we cannot for one moment have a regime that does not permit our agencies to continue to develop, work collaboratively internationally, and respond and keep pace with this pernicious, growing, highly talented, highly lucrative area of crime. I am confident that the bill will absolutely enhance and protect the ability of our agencies to keep New Zealand safe from cyber-security. I too look forward to the debate at select committee. I think the bill is in very good shape, as I say, thanks to the excellent work of the reviewers, initially, and then the collaborative work that has been led by the Attorney-General to get it to this point. I look forward to its report back.

As the leader of the Labour Party, Andrew Little, mentioned, the Labour Party will be supporting this bill to the select committee, where it will, as the Attorney-General has just said, go through some fairly significant examination in terms of its suitability and its balance.

I too would like to acknowledge the very different approaches that have been taken, both to this bill and to the foreign fighters legislation in 2014, in terms of a collaborative approach. A bipartisan and collaborative approach on this sort of issue is absolutely essential—first of all, so that the legislation is going to survive various parliaments into the future, and needs to be futureproofed, and secondly, because it looks after and protects some of the most fundamental privileges that we have as New Zealanders and as citizens of this country. Essentially, it protects our freedom to live peacefully, to live in security, and to lead prosperous lives, alongside the freedom of our ability to have privacy, and, to a degree—certainly to a larger degree—the ability to operate within that privacy.

I mention the collaborative approach that has been taken now because I think, unfortunately, 2 or 3 years ago when we first had the Government Communications Security Bureau (GCSB) legislation that came up, you will remember the farcical fiasco around Kim Dotcom at the time, and the way that the Government pushed that piece of legislation through, with the acquiescence, or arm-twisting, of Peter Dunne in order to get it through. I think we did an enormous amount of damage to the way that New Zealanders perceive our intelligence agencies, and the confidence that they had in our ability to conduct those sorts of activities. The means and the process by which it is going through now have a very big bearing on the acceptance that the public will have in terms of the outcome of this bill.

It was our argument back then, in 2012-13, that we needed a comprehensive review. We looked across at Australia, which had already had two comprehensive reviews by that stage, and we still had four fragmented pieces of legislation. Much of it had come out of the Cold War, completely unfit for purpose, and not doing what it should have and was meant to have done.

The Cullen and Reddy review was a very welcome step. They put out, I think, a very good and a very balanced report, and it has stood us in good stead now in terms of taking that report and moving it into the legislation and the new bill. But, as with legislation and with bills, it puts a greater onus on getting it absolutely right, absolutely accurate and robust—perhaps even more so than a review, which can be at least slightly ambiguous or perhaps a little more loose than a piece of legislation.

What we have now is a bill that, from my first reading and look at it anyway, looks good enough, certainly, to support, but it certainly throws up a number of areas that we are going to have to take a better look at. That will mean a number of expert submissions from the Privacy Commissioner, the Law Commission, etc., who had spoken to us and came to us on the foreign fighters legislation, to really look at what we have before us, because we have some pretty thorny issues. Andrew Little mentioned the definition of national security. This is, in a sense, the essence of the bill—what is national security; what is this bill trying to achieve? If we do not get that right, we could lean more towards leniency in terms of what the agencies are able to do, or constrict them unfairly in terms of being able to provide the sorts of protections that we want.

The second issue, which has been mentioned and was predictable, I suppose, was the issue of the GCSB having the ability to spy on New Zealanders. There are a number of issues and problems around the GCSB’s current role and the way that it operates. For example, if we had a New Zealander who was taken hostage in another country, and we heard a New Zealand telephone being used and emanating from that country, and we wanted to know what was being said on that telephone because it might pertain to the plight of that hostage, the GCSB would not be able to listen to that telephone conversation because it is the telephone of a New Zealander.

Likewise, if a New Zealander was overseas and became a foreign fighter, and if we thought that that person might be using their telephone, again we would not be able to listen into that particular call to give us information on that person, or, as in the previous example, on the hostage, because the GCSB is unable to access those records because they happen to be a New Zealander’s. That is patently a ridiculous situation to be in. What the review has come up with, and what is reflected across the bill, is the fact that, yes, the GCSB can look at, for example, the phone records of New Zealanders, but it has to be done in an exceptional way, at what we now call a third-tier level of clearance, which means the Attorney-General, the Commissioner of Security Warrants, an obligatory examination of that warrant by the Inspector-General of Intelligence and Security, and looking at the mechanism of that.

It is not a large number, but what we want you to do here is give our intelligence agencies, in a sense, the broadest ability to operate, but with the tightest degree of scrutiny. This is so that they have the range of powers that they need, but they can use them only under very specific and exceptional circumstances where our national security, or somebody’s personal security, is dependent on it. I think that is the balance that this bill has to try to achieve when it goes through, into the select committee.

Andrew Little mentioned, as well, the role of the Intelligence and Security Committee. This is a particular issue that I have talked about several times in the past. If you look at the various degrees of oversight, there is the operational oversight that happens within the agencies and there are the operational protocols that are in the agencies, which have been very much tightened over the last few years. There is the judicial oversight, which includes the Commissioner of Security Warrants and the Inspector-General of Intelligence and Security, which is, in a sense, the second level; and there is the third level, which is the political oversight, which is contained in the Intelligence and Security Committee. It currently has five members, and is chaired by the Prime Minister.

In other jurisdictions, that similar committee is not structured in that way, but has senior members—former members perhaps of Government, former Ministers, members of the Opposition, perhaps—on that committee. It is not chaired by the Prime Minister, who has the casting vote, and, therefore, in a sense, has a conflict of interest because the agencies themselves report, ultimately, to the Prime Minister, and the Prime Minister then has the power of oversight. We do not have the health Minister, for example, sitting on the Health Committee looking at and passing judgment on what his health ministry happens to have done. So getting that balance right in the Intelligence and Security Committee will mean that we will want to look at overseas examples—the Australians, the British, and the Canadians in particular—to see how that works out.

Likewise, a fourth issue that perhaps I will raise as well is the access to databases. There should not be a general access to databases by agencies. It should be done on the basis of what they need to know for a specific purpose, and that it protects the privacy of New Zealanders. When it comes down to it, that is where we need to find the balance in the Foreign Affairs, Defence and Trade Committee, before we refer this bill back to the House here. I am confident that this committee can do it. I think we have built, in a sense, the degree of collaboration and bipartisanship in the past. We will be looking at this bill very intently, we will scrutinise it very, very thoroughly, as an Opposition should, but at the end of the day I hope that this will end up being a piece of legislation that will stand New Zealand in good stead.

Firstly, could I please acknowledge the Attorney-General. I think it is important to do that because he sets the tone, in terms of how the debate will unfold and how the work on the select committee will unfold. I know that the Foreign Affairs, Defence and Trade Committee worked on the first piece of legislation, the Countering Terrorist Fighters Legislation Bill, and the Attorney-General set the tone right from the beginning—that it is very important as a Parliament, that we work cross-party, and that we work towards a consensus, because it is a matter of national security. When we look around the world and see how rapidly the terror threat is changing and growing, it is really important that we, as a country, remain serious, that we remain focused, and that we work together to make sure that we have got the best possible legislation in place to protect us, as a nation. The committee has built up some real experience in the national security area over the last couple of years, and I know that members are looking forward to considering this important piece of legislation.

Why do we need it? As the Minister has pointed out, the current legislation has passed its use-by date. National security is one of the core functions of a Government, and we need our decision makers to be well informed in order to effectively advance our national security and well-being. That is why we have the New Zealand SIS and Government Communications Security Bureau. In order for them to do their work, they need top-quality legislation. They do not have it at the moment. For example, the New Zealand Security Intelligence Service Act was passed nearly 50 years ago. It has been amended, but amendments cannot override the fact that it is now totally out of date. An Act passed in the same year as the first moon landing is not an Act that can operate effectively in the internet age.

The Minister mentioned that one of the primary tasks that the committee is going to have to undertake is the examination of how to approach the term “national security”. It has already been mentioned by both the Leader of the Opposition and also my colleague David Shearer. I want to spend the rest of this speech on that topic because of how central it will be to the work of the committee, and because the term is a difficult concept to define because it needs to be able to respond to different threats that may evolve or emerge over time. If we listened to the Hon Amy Adams’ speech—especially in relation to cyber-security—we got a clear picture of how quickly these threats can change and evolve.

The legislation includes a definition of “national security” proposed by the reviewers. It is restricted to protecting, as opposed to advancing, New Zealand’s interests—including its economic and international security. The specific definition proposed by the reviewers, and adopted in the legislation, is as follows: “the protection against—(a) threats, or potential threats, to New Zealand’s status as a free and democratic society from unlawful acts or foreign interference: (b) imminent threats to the life and safety of New Zealanders overseas: (c) threats, or potential threats, that may cause serious harm to the safety or quality of life of the New Zealand population: (d) unlawful acts, or acts of foreign interference, that may cause serious damage to New Zealand’s economic security or international relations: (e) threats, or potential threats, to the integrity of information or infrastructure of critical importance to New Zealand: (f) threats, or potential threats, that may cause serious harm to the safety of a population of another country as a result of unlawful acts by a New Zealander that are ideologically, religiously, or politically motivated: (g) threats, or potential threats, to international security.”

The reviewers’ proposed definition would provide greater clarity to the agencies and to the general public about the types of activities that the agencies are empowered to act in relation to, but it includes a number of different thresholds, such as serious harm, critical importance, and serious damage, which could be confusing. I note the Minister’s comments that he has received advice from the Parliamentary Counsel Office and Department of the Prime Minister and Cabinet (DPMC) that the approach could be unworkable. Other problems with the definition are a lack of clarity around the scope of the definition, meaning that it would not be clear what types of activities would be covered and what would not; the number of thresholds and tests in the reviewers’ definition would be difficult to apply in practice, and would give rise to uncertainty, in particular circumstances, about whether something fell within the definition; and concerns that an attempt to define “national security” would interact with other legislation and conceptions of national security across Government.

The Minister mentioned the alternative approach drafted by officials, available now on the DPMC website, which he stated would provide the committee with a better starting point. That approach would not define “national security” in and of itself, but would instead operate as an initial threshold with a list of the types of activities and threats in respect of which the agencies can target New Zealanders. It would take a two-step approach. First, the proposed activity would have to be necessary to contribute to the protection of national security. “National security” would not be formally defined, and would, therefore, be adaptive and responsive to a dynamic security environment. It would be determined by the Attorney-General and a judicial commissioner on a case by case basis. Second, the proposed activity would have to be necessary for the collection of intelligence relating to one or more of the following activities in New Zealand or overseas: terrorism or violent extremism; espionage or other foreign intelligence activity; sabotage, proliferation of chemical, nuclear, or biological weapons; various activities that may be relevant to serious crime and involve threats to or interference with information or information infrastructure of importance to the Government of New Zealand; threats to international security; threats to New Zealand Government operations in New Zealand or abroad; threats to New Zealand sovereignty, including its territorial or border integrity and system of government; threats to the lives or safety of New Zealanders.

This type of approach would provide greater clarity and transparency, as it sets out clearly the situations when the agencies can target New Zealanders, rather than taking the complex approach recommended by the reviewers. It would leave it to the Attorney-General and the judicial commissioner to determine whether a proposed warrant is necessary to protect New Zealand’s national security. This is a better fit with the reality that national security is not a static concept and that it is appropriate for the Attorney-General and a commissioner to determine the limb of the test through the warranting process, with New Zealanders protected by the triple-lock protection that the Attorney-General referred to in his speech. I have taken the House through this matter in detail because it is important to the legislation and the work the committee will have to do on it. I hope we will receive some good submissions that we can take into account, which was very prominent in the first process on the first piece of legislation, and I look forward to working with my colleagues on the committee to consider the legislation. I commend it to the House. Thank you.

The Green Party opposes the New Zealand Intelligence and Security Bill. We respect the intention of the Government, and especially the Attorney-General, the Hon Chris Finlayson, and also the reviewers, whose report underpinned the legislation. We acknowledge, though not without critical scrutiny, the changing global context in which the report and the legislation are conceived. The issue is this: what mix of constitutional principles is optimal for our nation at any one time? In that respect my party takes a different position from the Government. The stated purpose of the bill is “to protect New Zealand as a free, open, and democratic society”. It is to achieve that by “establishing intelligence and security agencies that … contribute to … [our] national security … international relations … [and] economic well-being … [with] adequate … functions, powers, and duties”. Those functions are to be performed “in accordance with [domestic] law and all human rights obligations … subject to institutional oversight and appropriate safeguards”. The bill fundamentally restructures New Zealand’s legislation pertaining to intelligence and security. Throughout its history, New Zealand has had separate legislation covering these issues, and for good reason.

It has had four pieces of legislation, in fact: the New Zealand Security Intelligence Service Act of 1969, the Intelligence and Security Committee Act of 1996, the Inspector-General of Intelligence and Security Act of 1996, and the Government Communications Security Bureau Act of 2003. The bill sweeps all of this separate legislation into the one single Act. It is not going too far to say that, given the basic nature of the values and principles involved, this is primary legislation with constitutional implications. This sweeping restructure, we are told, is for two reasons—first, a heightened threat level: the past half century has seen a growing sophistication of security threat; second, efficiency: there is a consequent increased need for the SIS and the Government Communications Security Bureau to work together and pool their resources and pool their expertise, and they are hampered in this respect by having separate legislation.

So on that basis, the bill proceeds to fundamentally amend primary legislation by virtually blending two agencies under a single authorisation framework and providing for joint warrants. We shall probably have occasion in the Foreign Affairs, Defence and Trade Committee to explore the intricacies of the 150 pages of the bill. If it goes into the committee, we shall be interested to learn what New Zealanders think of it. Meanwhile, this first reading is the occasion to reflect on the fundamental principles behind the bill that argue for or against its passage. Let me offer a few comments.

The bill is the direct child of the Cullen-Reddy review, the first independent review of intelligence and security in the country’s history, which was called for in the 2013 amendment. The report is a substantive and thoughtful document, a considerable portion of which we disagree with. The report is headed “Intelligence and Security in a Free Society”, thereby advancing the presumption that intrusive powers and civic freedoms are compatible. It opens by advancing what it calls two extreme views of the place of intelligence and security in society. One extreme is that State and individual security overrides other considerations. The other is that freedom and liberty are so precious that any secret activity by State agencies inevitably threatens those human rights. Most people’s views, the report says, lie between these two extremes, as do those of the reviewers. Voila! The review has just attained unction, having mortgaged the centre ground by assertion.

The review recommends, and the bill states, that its fundamental purpose is the protection of New Zealand as “a free, open, and democratic society”. This becomes what is called the guiding principle by which the activities of the agencies must be judged. Yet in paragraph 12 the review asserts that “The Agencies’ activities are, by their nature, intrusive.” Intelligence-gathering on a citizen that is in any way and to whatever extent intrusive, by definition, encroaches into the human rights of that citizen. How can we gather covert intelligence about a citizen without intruding into that citizen’s right to personal privacy? We may claim justification, but we cannot claim we are protecting a free society and, in the next breath, acknowledge that the action is intrusive. It is too cute. To the extent that the intrusion exists, that is the extent of encroachment on freedom. That is not an extreme view; it is a palpable truth.

In chapter 1, the review says that “We have approached this question from the perspective that security and privacy are complementary rather than competing rights.” In support of this, it cites the Universal Declaration of Human Rights, article 3, pertaining to life, liberty, and security of the person. It does not cite the UN Declaration on the Rights of Indigenous Peoples, which reaffirms that indigenous peoples in the exercise of their rights should be free from discrimination of any kind—something that our State security apparatus has not displayed a huge amount of respect for in the past. The review asserts that “Most rights are not absolute.”, and it cites the New Zealand Bill of Rights Act, which provides that “Rights may be subject … to such reasonable limits … [that] can be demonstrably justified in a free and democratic society.” It does not cite the International Covenant on Civil and Political Rights, which identifies certain non-derogable rights.

Setting aside for the moment whether intelligence gathering breaches those rights, it is not proven in the review, or the bill, why the expansion of intrusive powers is justified. It is simply asserted that times have changed and the threat has increased, yet the official level of threat assessment for New Zealand remains “low”, revised up from “extremely low” in October 2014. A “low” threat level is defined as possible but unlikely. Neither the review nor the bill explores this in detail, yet the bill rests its justification for centralised, expanded, and intrusive State powers on this basis. That is, at the least, contestable. The New Zealand assessment differs from those in the US, UK, France, Belgium, and Australia. The vulnerability of a country to global terrorism is broadly correlated with the extent of its military engagement with terrorist groups. The Green Party has maintained that terrorism should be regarded and managed as a criminal issue, both domestically and internationally, not treated as a threat to international peace and security. The only exception to this might be Islamic State, which possesses territory, claims universal jurisdiction, and declares war against UN member States. That is debatable. But most terrorism around the world is domestic in nature and focus and should not be hyped as an integral part of a global security threat.

The review recommends that the Attorney-General be the responsible Minister to approve tier one and tier two authorisations for intrusive powers. As the principal officer of the Crown, the Attorney-General is the appropriate member of the executive branch to take into account human rights implications and ensure that the rule of law is upheld. This raises the issue of the relationship between terrorism and the use of force by the State, including a foreign State; and between warrants for intelligence gathering based on suspicion of terrorist activity on the one hand, and for criminal liability based on suspicion of breaches of the law of genocide, war crimes, or crimes against humanity on the other hand. It is one thing to authorise a warrant to intrude into the private behaviour of a New Zealand resident; it is another to issue a warrant for the arrest of a visiting foreign leader for the excessive use of force, as occurred in 2006 in this country when the then Attorney-General saw fit to quash a magistrate’s arrest warrant against a foreign leader within 24 hours of its authorisation. The rule of law works both ways if a free, open, and democratic society is to retain its integrity.

The problem with this bill is that it authorises the centralisation and extension of intrusive State power into the private lives of individuals, after a spate of inquiries have shown the loose regard for law that those relevant agencies have maintained. There are many nuances to this all-important bill, and no doubt we shall explore them in a select committee. Suffice it to record here in this first reading that the Green Party sees no sufficient case, as laid out in the independent review, to justify the centralisation and expansion of intrusive State powers incorporated in the bill. We shall, therefore, be voting against it.

This bill has been a long time coming since the Government was first elected in 2008. Despite serious threats, nothing much happened until 2013, and then a rather ham-fisted attempt was made with some stopgap legislation. We had by then seen a situation in which agencies had acted illegally and in which nobody really seemed to know what the law was, and it was something of a shambles, presided over by a Prime Minister who was clearly not on top of his job. In fact, the best thing that came out of the 2013 legislation was the commitment for a comprehensive review, and the Cullen-Reddy review has been the result of that.

I want to take this opportunity immediately to compliment Sir Michael Cullen and Dame Patsy Reddy for an excellent and very comprehensive review, which forms the basis for this legislation. It is a comprehensive review, and most of its recommendations are to be implemented.

New Zealand First takes the need for a robust regime to protect national security, across a broad range of threats, very seriously. I was very interested to hear the comments made by Amy Adams in her description of the magnitude of cyber-threats, which are being mounted against this country on a daily basis. New Zealand First seeks better arrangements than we currently have to ensure the protection we need in a very troubled world, but not at the price of the freedoms and privacy that Kiwis are entitled to expect. We will support the bill to the select committee to pursue these dual objectives.

The Cullen-Reddy review’s recommendations that the Government Communications and Security Bureau (GCSB) and the Security Intelligence Service (SIS), and their oversight bodies, be covered by a single, comprehensive piece of legislation are the basis of the bill. It emphasises the need to remove the barriers to effective cooperation between those two agencies and the need to improve transparency and oversight arrangements to give the public greater confidence that the agencies are acting lawfully and appropriately. We support that approach.

New Zealand First’s objectives have always been firstly to protect Kiwis’ civil liberties, freedoms, and privacy, but also protection from threats to our safety and to our essential national security interests. Therefore, we fully recognise the need for effective intelligence and we accept the need to conduct surveillance and collect intelligence about New Zealand citizens and residents where necessary, provided that there is a robust process for authorisations, provided that the law is clear and effective, and provided that there are comprehensive review and oversight provisions to give the public confidence that the security agencies are independently supervised and accountable.

I was interested in Kennedy Graham’s speech. I would like to remind him that the rights of every individual are subject to the rights of others, and those rights include the right of security. The rights of individuals are not absolute; they are subject to the rights of others. That is what I think the flaw in his argument is.

New Zealand First has a number of issues that it wants to pursue with this bill. One of the concerns is the membership of the parliamentary Intelligence and Security Committee. There is still a pretence that there is a Leader of the Opposition, and that is archaic in an MMP parliament. There is, in fact, no such office. That has to be changed. That is in the bill. All of that has to be changed, as far as we are concerned. This does not mean that as of right all political parties should be represented, but it does mean that representation needs to be more than just the old Labour-National axis. The rationale is that the people on the committee must be experienced and trustworthy, and our main concern is that the committee must not be dominated by the Government.

Looking at the main elements in the bill, there will be a single authorisation regime, which seems to me to be robust as set out. Warrants will authorise the agencies “to carry out an otherwise unlawful activity where it contributes to [specified] objectives”. I think that is very important. Tier 1 warrants are required to collect intelligence about New Zealand citizens or residents, and approval for them is required from both the Attorney-General and a Commissioner of Intelligence Warrants. Those two approvals, along with the oversight by the Inspector-General of Intelligence and Security, are what is being referred to as the “triple-lock system”, as mentioned by the Attorney-General in his speech. The activity authorised must contribute to New Zealand’s national security, and that term, “national security”, is therefore very important.

As we have heard other speakers say, there are two alternatives available—the one in the bill and that promoted by the officials. I prefer at this stage the officials’ version over the one in the bill, because it seems to me to be more focused and specific, listing relevant activities. They were set out well by Mark Mitchell in his speech. I think that seems to me to be the better way to proceed. However, in the end the select committee will need to consider and decide on that.

The additional criteria for a warrant, in clause 57, include a necessity test as well as a proportionate-to-purpose test, and require that the purpose of the warrant could not be better achieved by other means. There is also a requirement for reasonable use of the warrant and for the information collected to be used lawfully. That is pretty comprehensive, I believe.

Tier 2 warrants can be issued to collect intelligence about people who are neither citizens nor residents. These are approved by the Attorney-General only, but otherwise the provisions are similar to the tier 1 warrants. That all seems to be quite a good way to deal with the situation as far as New Zealand First is concerned.

There is also a need for urgent oral warrants, and they are covered in clauses 69 to 71. That power is subject to the requirement for the Attorney-General to immediately advise the Chief Commissioner of Intelligence Warrants, who can cancel it until a formal application is made. I would like to say about Andrew Little’s comments on that that I do not agree with him that it is inappropriate for the Attorney-General to be able to be the person who authorises those warrants. I think that is quite appropriate. What I would say is that I agreed with Andrew Little when he questioned the length of time that those warrants can endure for. We need to have a look at that in the select committee, as well.

Privacy issues are of the highest importance. I am very pleased to see that the bill increases the number of information privacy principles applying to the GCSB and the SIS. That will give individuals an avenue for making complaints where none has previously existed.

Of the greatest importance, the bill improves oversight arrangements. The removal of the current restriction on the inspector-general inquiring into operationally sensitive matters is good to see, and clarifying that the inspector-general may review warrants on substantive as well as procedural grounds is a matter that New Zealand First has insisted upon during the consultation process. New Zealand First is pleased to see the inspector-general’s appointment will be by the House of Representatives. That will show that person’s independence in that role. The inspector-general’s functions, in clause 121, provide a pretty comprehensive set of review powers that I think will give New Zealanders great confidence that he will be effective in that role. He also has the ability to conduct unscheduled audits of procedures and compliance, and I am glad to see that. There is also a complaints procedure of an independent nature to the inspector-general, and that is good.

Reporting is to the Minister responsible, the Prime Minister, the director-general of the appropriate agency, and the Intelligence and Security Committee of Parliament. That also is good to see.

Finally, it is good to see that the bill also offers some protection to whistleblowers and will bring the agencies within the ambit of the normal State sector arrangements. However, the restriction to inform only the inspector-general is something that we will need to consider at the select committee. Whether that is satisfactory or whether there should be a wider ability for people to blow the whistle to other people is something that we need to look at more closely.

Finally, New Zealand First does welcome this bill—

I am sorry to interrupt the member. His time has expired.

It has been good to listen to the debate on this bill so far. I think, from my calculation, that there will probably be about 15 members of Parliament who will be voting against this bill. That, I think, indicates to the House that there is broad cross-party support for this piece of legislation to go through to the select committee after a first reading, and I think that is a testament both to the information that was provided to the Government by the Dame Patsy Reddy and Sir Michael Cullen review and to the work that the Attorney-General and Prime Minister have put into this legislation to ensure that there are improvements to the mechanisms in place around intelligence and security in this country—to ensure the agencies can do their jobs but also that there are appropriate protection mechanisms in place.

I would like to focus, during my contribution to this debate, on the information-sharing aspects of this legislation and the privacy protections that it puts in place. I think privacy protections are a fundamental issue of interest for New Zealanders. This bill provides some good news for New Zealanders and it is something that I believe New Zealanders will be happy with. A good starting point on this topic is the comment of the Privacy Commissioner, John Edwards. He pointed out recently, on Twitter, that this bill is a significant improvement in privacy terms. That is quite high praise, I think, coming from the Privacy Commissioner. I think it is a tribute also to the work that has gone into ensuring that New Zealanders’ privacy is protected in the greatest possible way in this legislation, which, after all, deals with the two agencies with the most intrusive powers in the New Zealand Government.

The bill also allows information sharing through three broad categories, which I will outline here. Firstly, it gives the Government Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS) direct access to certain Government databases. This follows the recommendation of the reviewers that the agencies should access these databases directly. One of the agencies is the New Zealand Customs Service. Its database has information about border-crossing crafts, goods, and people. This is to detect, for example, persons of interest such as suspected terrorists or foreign intelligence officers. It also provides access to the Immigration New Zealand database. This is to help track the movement of persons of interest. The Department of Internal Affairs database, Births, Deaths and Marriages, and the relationships and citizenship registers will also have access to them. This is to help cross-check information to confirm identities or associations between people of interest or to confirm their nationality.

As the Minister mentioned earlier in this debate, the Labour Party has raised issues about this final database, and we will have a good look at that in the Foreign Affairs, Defence and Trade Committee. The committee has a track record, I believe, of working quite well with Opposition parties on issues like this, and will continue to do that under Mark Mitchell’s chairmanship. But it is useful to look at the key protections that are already in the legislation.

The access to information must only take place in accordance with an agreement between the relevant Ministers. That agreement must be consulted on with the Privacy Commissioner and the Inspector-General, and the Ministers must take account of any comments they make. The agreements must be published, and the agreements have to be reviewed every 3 years. There are other protections, saying that the access must be necessary and that there are adequate safeguards to protect New Zealanders. The agencies are also going to be made subject to the Privacy Act, which will be providing further protection for New Zealanders.

The second category of access of information sharing allows the agencies to seek access to restricted information, such as driver’s licence photographs, tax information, and national student identification numbers, on a case by case basis, with significant protections that reflect the sensitivity of this sort of information and the right of every New Zealander to know it will only ever be accessed in the most extraordinary of circumstances. The most significant protection is that permission must be sought from the Attorney-General and the Commissioner of Intelligence Warrants to access any such information on a case by case basis. They will need to be satisfied that the request is proportionate and necessary and in line with the requirements of the legislation.

Finally, the bill clarifies the existing position that the agencies can request other information from other public and private entities as required. This is set out in clause 99 of the bill. I have set out some of the key protections around access to information, but there is really no greater overall protection than what the bill does with the Privacy Act 1993. The bill will repeal the general exception provided to the GCSB and NZSIS in the Privacy Act 1993.

I want to acknowledge that this is a significant step. It was not something that was recommended by the review, nor was it recommended by the Law Commission when it reviewed the Privacy Act. This change in the legislation goes well beyond the privacy protections that the reviewers envisaged would be put in place. But this was something that has been advocated for by the Privacy Commissioner. It is also something that the Government has taken very seriously. For the first time the agencies will be brought under the full umbrella of the Privacy Act, with some specialised exceptions in light of their functions.

The Foreign Affairs, Defence and Trade Committee will have a good look at that area. I look forward to hearing the views of the Privacy Commissioner and other individuals interested in the issues of privacy when they make submissions. The Privacy Commissioner himself has already made some good comments in a piece that he put on The Spinoff website, which is available for all to read.

💬 Chris Bishop: What a great website.

Thank you, Mr Bishop. I want to quickly cover the topic of immunity. The Labour Party has said it is not comfortable with undercover agents getting immunity from prosecution. There are three things that I think should be said in response to that, from our reading of the bill and Cabinet papers. The main point is that a person must always be acting in good faith, in a reasonable manner, and the act must be necessary. If this is not the case, there is no immunity. If there is any real fear that someone can act dishonestly or with bad faith and still have the immunity apply, that is not the case.

The immunities that have been drafted are actually quite targeted also, in that they relate specifically to the legal protections that employees need to carry out their jobs. Most of the immunities reflect the existing ones for the police and other public servants. The select committee will be looking at these areas very carefully. I know that privacy questions are areas that many New Zealanders are concerned about. They want to ensure that the Parliament takes them seriously and puts in place appropriate mechanisms to protect New Zealanders. I think this legislation goes a long way towards protecting New Zealanders’ rights to privacy whilst also allowing the GCSB and the NZSIS to do their job on behalf of New Zealanders, in the public interest.

The next call is a split call. Metiria Turei—5 minutes.

I do want to just acknowledge the Minister’s efforts to talk with us about this bill and what was happening, and also his commitment to a full select committee process for this legislation. It is critical that New Zealanders have access to the select committee to work through the provisions of this bill, given it is their rights that could potentially be infringed by these provisions. We need to have a very robust discussion about the provisions of this legislation, about security in New Zealand, and about the rights of New Zealanders to be free from an unjust incursion into their rights.

I want to address two issues that have been touched on, particularly in the media, and they are around oversight of the agencies and the extent to which this bill does or does not deal with that. First is the Intelligence and Security Committee. I think it was very unfortunate, and quite improper, actually, for the Prime Minister to say that the Greens or others who might disagree with him should not be represented on the parliamentary committee that provides oversight of the intelligence and security agencies. This Parliament is representative of a broad range of views; the select committees in this Parliament are also representative, proportionally, of those views. This committee, the Intelligence and Security Committee, should also have representatives from a broad range of views so that when these agencies, these spying agencies, come to that committee, there is a genuine investigation into their work, into the justification of their work, to make sure that the hard questions are asked. If the only people on this committee are those who agree with the agencies and their powers, and no one who will question them, then New Zealanders can rightly say that this process is undemocratic and constitutionally foul, because it does not do the job it is supposed to do, which is to oversee the very critical role that these agencies play in protecting New Zealanders, but also the retention and the protection of New Zealanders’ human rights. We want to see that committee expanded. There are ways to do that very practically that do not require a political intervention. One of the suggestions is that a party that meets the definition of a parliamentary party under the Standing Orders has automatic representation. That keeps the committee to a manageable number of people but also makes sure there is a broader representation of views, which is critical in a representative democracy, which we are elected here to uphold.

The second part of the oversight process is, of course, the inspector-general. There are some good provisions in this legislation in relation to her current office. I would just say that in the reports over the last 2 years, the inspector-general, when she has looked at the processes that the Security Intelligence Service (SIS) and the Government Communications and Security Bureau have used as they go about their business, has provided almost consistent criticism of the failings of those two agencies. The most recent one that I am aware of is on the vetting process, for example, that the SIS does, where the inspector-general has said that that information—private information, confidential information—is not being held securely, that there is far too much access from far too many people, and that that information is being improperly used for counter-intelligence. We want to make sure that when these agencies gather information about New Zealanders’ private details—where people live, what they do, who they know, where they go—that information is being properly used by these spy agencies, and she has said that there are process issues with the SIS.

We also know that the SIS has been told by her that they have not been meeting their legal obligations and that they have unsound compliance procedures. No doubt they will be working on these issues, but if these agencies and the Government, which oversees them, want these agencies to have increased power to gather information about New Zealanders and what we all do, they need to prove that they are responsible enough to manage that information—and they have not proven it yet. The inspector-general has shown serious concerns with the process that these agencies use, and, at least until she is confident that these agencies will hold that information properly and have good processes in place, they certainly should not be given expanded powers to spy on New Zealanders and keep our information. Thank you.

I call Stuart Nash—5 minutes.

First of all, I want to reiterate Andrew Little’s and David Shearer’s comments about how Minister Finlayson is doing a fantastic job with this. I mean, my experience of Chris Finlayson—and I have dealt with him on issues in Napier—is that he is very consultative and collaborative, partly because he understands the necessity of getting this absolutely right.

Metiria Turei is right when she says that we have got to ensure that the rights of Kiwis are not infringed, but the bit she did not put in, which is why I think Labour is supporting this, is that we also need to protect the right of New Zealanders to live in a safe society—to live in a community with the expectations and the beliefs and the quality of life that we have come to expect in 21st century New Zealand. I think we are being naive to believe that just because we live at the end of the world, surrounded by this massive big moat called the Pacific Ocean, we are immune to any sort of terrorist attacks.

One of the things that I am very, very conscious of is that I actually do not sit on the Intelligence and Security Committee. Unless you do, it is very difficult to know the threats to our country that are brought before that select committee. In fact, very few MPs do know, but the fact that these MPs are the ones who are supporting this bill—the fact that these MPs actually understand the threats that our country could be under—means that we need this sort of legislation, which actually should have been done a long time ago. In fact, my colleague David Shearer has been calling for this review for a long time, and it was not until responsibility was handed over to Mr Finlayson that a review by Sir Michael Cullen and Dame Patsy Reddy was undertaken. I think everyone in this House acknowledges—well, the vast majority of members in this House—that it was an exceptionally thorough and highly respected review that covered all the topics that it was asked to do, and this legislation is what has come out of it.

But let us be clear about this: this is a very important piece of legislation with far-reaching consequences, and we know that New Zealanders will be watching closely. That is why we want to see as many submissions, from all the experts as well as good, hard-working Kiwis—but all the experts—presented in front of the select committee. It is very important that New Zealanders have confidence that when this legislation is passed, it is done in a very robust, democratic, and constitutional manner, which it will be.

My colleague David Shearer and my colleague David Parker are the two Labour MPs on the Foreign Affairs, Defence and Trade Committee. These are two of our most senior members of Parliament, both with international experience. David Shearer, of course, has international experience in this exact area of international terrorism, in working in a lot of the world’s trouble spots. David Parker has experience in areas of constitutional law. I do not think that Labour could have put up two more experienced and competent MPs in this area to actually drive this forward.

💬 Chris Bishop: What about you?

It is not my area of expertise at all, Mr Bishop. I know it is your area of expertise, because you are an expert on everything, but in this case I have absolute confidence that Mr Shearer and Mr Parker will be holding the Government to account to ensure that the legislation we pass will not only protect the rights of New Zealanders—the Greens can be absolutely certain of that—but will also protect the safety of our communities. Let us be honest, that is incredibly important in this day and age.

What I am told is that this is not a piece of legislation that good, hard-working New Zealanders need to be worried about. I know there is that glib line “If you’ve done nothing wrong, you’ve got nothing to be worried about.”, and I do not buy into that. But what I am told is that there has to be absolute probable cause for the spy agency to spy on New Zealanders. The legislation goes through a number of checks and balances, so this is not going to be a willy-nilly “We don’t like the cut of this bloke’s jib, let’s send the agency in.” There will be probable cause, there will be a number of checks and balances, and I think New Zealanders can be absolutely certain that this agency is going to act with the level of integrity that we will expect.

Just to sum up, Labour is absolutely supporting this piece of legislation to select committee. We are very keen to hear what the experts have to say, and we are very sure that the legislation that will return to the House after the select committee will meet all members’ expectations. I congratulate the Minister on his level of consultation and I look forward to seeing this come back to the House after select committee. Thank you very much.

It is a pleasure to speak as deputy chair of the Foreign Affairs, Defence and Trade Committee to support the New Zealand Intelligence and Security Bill. In this contribution, I want to take an in-depth look at the new warranting regime and some of the protections in the legislation. To start with, why do we need a new regime? As the Minister has set out, section 14 of the current Government Communications Security Bureau Act does not provide the protection a number of people assume it does. The Government Communications Security Bureau (GCSB) is already able to target New Zealanders for cyber-assurance and assistance functions. However, in many cases section 14 actually prevents the GCSB from doing the security job we need it to do.

Let us take a hypothetical situation under the current legislation. Let us say the Government has fragments of information about New Zealanders fighting overseas, let us say in an area controlled by the Islamic State of Iraq and the Levant (ISIL), and they clearly need to be identified. The two main agencies involved would be the New Zealand Security Intelligence Service (NZSIS) and the GCSB. Let us look at the NZSIS first. In the current situation, the NZSIS may well be unable to get a warrant because it can currently target only individuals, and yet there are only fragments of information about who these people are and not enough to specifically identify an individual.

Let us look at what the GCSB can do. The GCSB specifically cannot target New Zealanders, because section 14 of its Act bars it from targeting New Zealanders for intelligence-gathering purposes. But it can assist the NZSIS, and here is the problem, because assisting the NZSIS would require a warrant and yet, as we have already noted, this is not possible because we cannot identify an individual, and so the GCSB also cannot assist. This then leaves our two main intelligence agencies unable to address the security risk described in this example. This situation is clearly unsatisfactory, and is one of the reasons the report of the independent review of intelligence and security recommended that section 14 be repealed.

The quid pro quo is that the GCSB and NZSIS will now be covered by the same enhanced warranting regime. This legislation brings the NZSIS and GCSB under the same warranting structure, and introduces a concept called the “triple lock” as a better safeguard for New Zealanders than section 14. The triple lock means that a warrant must be approved jointly by the Attorney-General and a Commissioner of Intelligence Warrants, with oversight provided by the Inspector-General of Intelligence and Security. Any NZSIS or GCSB warrant targeting a New Zealander will be subject to this core protection, the triple lock. This is in addition to the very high bar for all warrants that they must be proportionate and necessary. Furthermore, unless they are an agent of a foreign power, a New Zealander can only ever be targeted for national security reasons. As the Minister pointed out, this is an important restriction on the current NZSIS legislation, which allows New Zealanders to be targeted for wider economic well-being and international relations grounds. In the new regime, national security is the overriding consideration.

Let us look at the types of warrants. What does the new warranting system look like? First, there are tier 1 warrants; these are required for intelligence collection activities targeting New Zealanders, and would otherwise be unlawful. These must always be approved by the Attorney-General and a Commissioner of Intelligence Warrants, and they are subject to review by the Inspector-General of Intelligence and Security—this is the triple lock that I have already mentioned. Under the current system, the Minister responsible for the relevant agency signs the warrants and then the Commissioner of Security Warrants countersigns. Under the new system, the Attorney-General will replace the Minister responsible, and this reflects the non-political and careful way in which these warrants will be issued. The commissioner will retain his function.

Then there are tier 2 warrants; these are required for intelligence collection activities targeting non - New Zealanders, which would otherwise be unlawful. The system here is the same as for tier 1 warrants, with the Attorney-General authorising the warrant. The Commissioner of Intelligence Warrants is not involved with tier 2 warrants, as their function is as a protection for New Zealanders.

The bill also allows for joint warrants in appropriate circumstances. This is to aid the two agencies to work together where required. The legislation does not propose amalgamating the agencies, as that would significantly increase their powers. It is in all our interests, however, for them to have the ability to work together when they need to, subject to all the protections set out in the bill. The bill also allows for purpose-based warrants where it is not possible to identify a specific target. These will only ever be available where the objectives of the warrant cannot be accomplished through a targeted warrant. It is a very high bar to meet, but it fills an important gap.

To return to my earlier hypothetical where the GCSB could not identify New Zealanders fighting overseas in an area controlled by ISIL, how would that situation be resolved under this new legislation? Under the new framework, GCSB and/or NZSIS could attain a tier 1 warrant for the purpose of New Zealanders fighting overseas with groups like ISIL. Every tier 1 warrant is issued by the Attorney-General and a Commissioner of Intelligence Warrants. A “Type 1 warrant” can be issued only for national security purposes, which would be satisfied in these cases, and the Inspector-General of Intelligence and Security would have the ability to review the warrant. That outcome is a vast improvement on the current situation, which is the result of legislation that has probably been amended too often and has failed to keep up with the times.

In conclusion, this legislation is a good piece of work. I commend the Attorney-General and officials for bringing it to the House to this point, and I look forward to working on it with my colleagues across the House on the Foreign Affairs, Defence and Trade Committee. I commend it to the House. Thank you.

I welcome the opportunity to speak on this bill, the New Zealand Intelligence and Security Bill. I have to say, in my many years here in Parliament this is the first opportunity that I have had to debate such a bill, and so I do welcome this opportunity.

Like many others here today—in fact, most speakers—I would like to acknowledge the Attorney-General, the Hon Chris Finlayson, and the way that he has conducted the whole process of this bill—the input into it and the inquiry. I think it shows an Attorney-General who is willing and open to wanting to work with members of this House. That has not always been the case, and so, like others, I want to put that on the record.

Andrew Little, when he was speaking, said that this bill is a good start and that Labour will be supporting it to the select committee, and it is a good start. I will raise some of our concerns later on, but I am a strong believer, and have been for most of my parliamentary career, in allowing the public to have a say on legislation that comes to this Parliament. That is why, even at times when there are bills that you think are not the best bills in the world, allowing the public to make a submission and have a say on it is, I think, part of a democratic process, which is why I believe that this bill should go to a select committee to enable there to be a public say on it. I am glad that Shane Reti is going to be the chair of this committee because I have a lot of faith in him as a person who will conduct this committee in an open and transparent way; my experience with Dr Reti is in the Health Committee, and that is his style.

The security of New Zealanders is the responsibility of any Government, whether it is food security or biosecurity or national security. A Government or a Parliament that does not do its utmost to protect the security of its citizens is failing them. I have to say, having been a Minister of Police, I often felt that acutely when issues arose where the police had to intervene. At the same time here in New Zealand, we have two main laws that specifically promote and protect human rights: the Human Rights Act of 1993 and the New Zealand Bill of Rights Act 1990. It is in that latter Act that the range of civil and political rights are set out, which arise from the UN International Covenant on Civil and Political Rights. It includes freedom of expression, freedom of religious belief, freedom of movement, and the right to be free from discrimination. When we are looking at a bill like this we are looking at how we balance the right for national security with that of human rights, and all legislation that comes here is examined to see whether it is consistent with the rights and freedoms in the New Zealand Bill of Rights Act. A Government is required to provide justification for limits placed on these rights. I am one of those who always goes and reads the regulatory impact statement that is provided to this House—often with great disappointment, when large amounts of it are redacted.

That is not the case in this particular one, but I do want to just point out—and this is something I hope that we can improve in the future—that this was tabled today. Many of us in the House have not had the opportunity to download references in this regulatory impact statement. So, for example, there is a regulatory impact statement provided to the Prime Minister and Cabinet. We are then told to go and download it, and we are given a website. That is not always possible when it comes to the House at the last moment, and you are trying to read it and prepare. We then have one that is advice given to the Attorney-General from the Ministry of Justice. We are also told “it is generally expected to be on the Ministry of Justice’s website.” I have not had the time to go and see whether it is. But these sorts of things ought to be provided and available for members to be able to read very readily with the bill.

The last one I want to raise is consultation with the Privacy Commissioner. The Privacy Commissioner was consulted, but the report from the department does not tell us what he said. So I believe that these things ought to be part of a regulatory impact statement and part of a department disclosure statement, which makes it much easier for open debate here in this Parliament.

The bill we have today must, as I said, balance national security and human rights, and if you get it wrong, New Zealanders will punish politicians. There is no doubt that legislation controlling the work and the scope of the New Zealand security and intelligence agencies needed to be updated. Heavens above! This world is moving so fast. It is moving so fast in terms of terrorism and global threats that we cannot believe that just because of where we live we do not face a threat here in New Zealand. It may be a domestic threat, but there could well be a threat here in New Zealand, and New Zealanders would expect us to be ready for that. To hear the Minister of Justice’s comments on cyber-threats to New Zealand—it is something you would not have dreamt about a decade ago. This is what is happening in our world today. It is totally different from the old days of 007 and picking up your spying from bits of paper. What we see happening today is totally different from that.

I welcome the action that was taken by the Government in setting up an independent review of intelligence and security in New Zealand. My colleague David Shearer was very keen on such a review. The Government could have had a review that was not independent, but it was an independent one and it was carried out by two highly respected New Zealanders, Dame Patsy Reddy and Sir Michael Cullen. I think their review and report were very considered. They were very careful, and they were very collegial in ensuring that we knew what was in that report. With my knowledge of Sir Michael Cullen, who has a great grasp of legislation and of human rights, and who was a parliamentarian in this place for many years, I personally had a lot of faith that he would do a very good job. I do not know Dame Patsy as well, but from the report, it seems they worked incredibly well together.

What this bill does do is replace four existing Acts that currently apply to the Government Communications Security Bureau (GCSB) and the NZSIS and their oversight bodies, the Inspector-General of Intelligence and Security and the Intelligence and Security Committee. It puts them into one piece of legislation. That, to me, makes common sense, because one of the problems you have in trying to find legislation, if you have to hunt through a whole lot of other pieces of legalisation, is putting it together. This, I think, is something that Sir Michael would have been very keen to promote, because he has understanding of how laws are interpreted and how easy to find they need to be.

The second thing that this bill does is it continues existing protections around political neutrality, lawful advocacy, protest, and dissent, and it requires the director-general of an intelligence and security agency to regularly consult with the Leader of the Opposition. I have to say that I disagree with my colleague from New Zealand First—there is a Leader of the Opposition in this House, and there has been for as long as I can remember. I am pretty certain that if New Zealand First was the biggest party in Opposition today, there would be a Leader of the Opposition. So it exists as part of our House today.

What I also think is an important part of the requirements of this bill is far more transparency from the GCSB and the SIS on their functions, and it is acknowledged for the first time in this legislation. What I have noticed in very recent years is that the openness and the transparency that we have had from those agencies I have not seen before. I think that is very welcomed, because they have had a cloak of secrecy over them that made people very suspicious of their activities. I am in a privileged position of being able to meet with the leaders of both the GCSB and the SIS, and their openness and transparency, I think, is very good indeed.

The third issue I wanted to mention is the fact that the GCSB and the SIS—[Interruption] I thought I had 5 minutes, Mr Assistant Speaker. I have only just got warmed up.

The ASSISTANT SPEAKER (Lindsay Tisch): No, you’ve just had 10 minutes.

Oh, well—extension of time! Can I just conclude by saying we do not believe, however, that the bill gets the balance right, and that is why, at the select committee, we do want to look at the definition of national security. I believe that the Government will be very willing to listen to what we have got to say, and make the appropriate amendments. Thank you.

Debate interrupted.