Intelligence and Security Bill

I will say something about Part 2, which provides for the continuation of the intelligence and security agencies and sets out their objectives, functions, and duties. The key change to Part 2 is in the redrafting of clause 15 for greater clarity, and the reorganisation and consolidation of the general and specific duties owned by the intelligence and security services.

So let us look briefly at clause 15, because the redrafting makes clearer when the GCSB is required to obtain an authorisation for information assurance and cyber-security activities carried out pursuant to clause 14(2). Certain other matters are spelled out for the avoidance of doubt. So, for example, clause 15(5)(b) makes it clear that the information about cyber threats can be shared with certain other agencies, including foreign partners, but a new requirement has been added in Part 2, for the Minister to be satisfied—and this is an important requirement—that sharing with foreign agencies is in accordance with New Zealand law, including human rights obligations recognised by New Zealand.

The second part that I want to talk about concerns the duties applicable to the intelligence and security agencies. These duties are contained in clauses 19A through to 23, and they have been reorganised and consolidated, including by reframing the principles that were in clause 12, as introduced, as duties.

So I turn to clause 19A. It replaces the previous clause 12, and the effect of this amendment is that what we have previously described as principles applying to the intelligence and security agencies but purporting not to impose any duties have now been, as you can see, replaced with specific obligations. They are the obligation to act in accordance with New Zealand law and all human rights obligations recognised by New Zealand law, and the duty to act independently and impartially, with integrity and professionalism, and in a manner that facilitates effective oversight.

In addition, clause 20 sets out some specific duties on the directors-general. They are to take all reasonable steps to ensure that the activities of the agencies are limited to those that are relevant to the performance of their functions and are kept free from any influence not relevant to the performance of their functions. Very, very importantly, they are politically neutral. They have been consolidated, as I say, in that redrafted clause 20, which is a very important clause, indeed. It also includes a duty on a director-general to ensure that any cooperation with foreign jurisdictions and international organisations is done in accordance with New Zealand law and all human rights obligations imposed by New Zealand law.

I will take a brief call in respect of Part 2 of the amendments to the Intelligence and Security Bill. I accept that the amendments that are shown in the Minister’s Supplementary Order Paper do not change the substance and that they are merely drafting improvements.

Can I just talk to clause 20 of the bill. This was amended at the Foreign Affairs, Defence and Trade Committee, and I want to speak in favour of the form that it has come back in from the select committee. The obligation for political neutrality—I think when I spoke in the first reading debate I confused in my contribution the GCSB with the SIS, and the Attorney kindly pointed that out before I dug myself too deep a hole.

The point that I was making was that Warren Tucker, when he was head of the NZSIS, allowed his office to be used in a way that was not politically neutral. In order to guard against that happening again, the purpose of clause 20, “Specific duties of Director-General of an intelligence and security agency”, which includes the SIS, has included: “The Director-General of [such] an … agency must take all reasonable steps to ensure”, and then at clause 20(a)(iii), that their activities are “politically neutral (for example, “the activities are not carried out for the purpose of promoting or harming the interests of any political party or candidate)”.

All you can do in respect of these—if you accept the proposition that you need these sorts of agencies, what is important in order to balance the interests of society, and those agencies going about their business, is a countervailing duty that they do not go too far and undermine the society that they are meant to be protecting, which is a point that Kennedy Graham made in his initial contributions.

I think that the addition of that clause 20(a)(iii) is good. In the end, the oversight of these agencies depends most not just on the calibre of the people that you appoint to those positions but also on the oversight of the Inspector-General of Intelligence and Security, the IGIS, I think we describe her as—it is currently Cheryl Gwyn. For those reasons, I think that is an appropriate addition, as it came back from the Foreign Affairs, Defence and Trade Committee.

I would like to turn the attention of the Minister in the chair, Chris Finlayson, to clause 13, “Intelligence collection and analysis”. Specifically, I am interested in clause 13(1)(b)(iii), which allows for intelligence that has been collected, and the analysis of that intelligence, to be distributed to “any person or class of persons (whether in New Zealand or overseas) authorised by the Minister” to receive the intelligence and any analysis of that intelligence.

Admittedly, I am coming at this as a layperson—I was not on the Foreign Affairs, Defence and Trade Committee—but I think, as a layperson, that looks awfully broad, and I wonder whether the Minister would be able to inform the Committee exactly what the criteria are that are used to determine who the person or class of persons ought to be who should be able to receive that intelligence. Actually, the reference to subclause (3) has been struck out. Subclause (3) says that, if I am reading this correctly—no, sorry, it has not been struck out; it has been changed. It has been changed, and it says: “Before authorising under subsection (1)(b)(iii), the provision of intelligence [and the analysis of that intelligence] to any person overseas or class of persons, the Minister must be satisfied that, in providing the intelligence [and analysis], the intelligence and security agency will be acting in accordance with New Zealand law”—ah, I would hope so—“and all human rights obligations recognised by New Zealand law.”

That gives some reassurance that the agencies must be acting lawfully and must be sure not to contravene people’s human rights, but what it does not clarify is exactly who we expect would be the recipients of that information, especially given that they could be within New Zealand or they could be overseas. I am utterly sure that it is legitimate, but for people who are coming at this from a perspective of not knowing this legislation inside and out, I think it would be useful to the House if the Minister was able to address that.

I am happy to oblige—this is in answer to Mr Lees-Galloway’s comments about clause 13(1)(iii). An example of persons within New Zealand may well be the customs or immigration authorities or police, or their counterparts overseas, provided that the Minister is satisfied that if information is provided to a foreign entity, someone will not be garrotted, for example, because you have to act in accordance with New Zealand’s human rights law.

Can I just speak to clause 14 and again take an opportunity to ask the Minister in the chair, Christopher Finlayson, a question, as I do not sit on the Foreign Affairs, Defence and Trade Committee. It goes to a new subclause (1A) that has been inserted into clause 14, which reads “An intelligence and security agency may provide protective security services, advice, and assistance to any public authority or person or class of persons under subsection (1)”—we do not need to worry about that—“in co-operation with any other such public authority or person or class of persons.” My question is around oversight, because if the Minister is approving certain agencies or certain bodies for protective services to be supplied by them or for cooperation to be had with an intelligence agency, and then that agency is cooperating with other agencies or other persons, the net gets a bit wider. I guess my question is: what level of oversight is there from the Minister or within the realm of the intelligence agencies, just to see how far that might get?

I think there would be concern amongst the public—it is a little bit like your neighbour’s neighbour’s neighbour’s neighbour, because you are cooperating with so many agencies that are with the primary agency that is being cooperated with—as to how far this information could get. I am assuming it will not get too far, but my question to the Minister in the chair, Christopher Finlayson, is: what safeguards are there to ensure that the kinds of operations or the kind of information that may be shared under clause 14(1A)—which looks like it has been added by the select committee—might be safeguarded to make sure that that information and the operations might not be spread too far?

I think, given some of the scrutiny of intelligence agencies in the last 5 to 7 years, there would be a lot of public scrutiny as to whom exactly we are cooperating with, and I think that would probably be a valid question that people who may have submitted to the select committee might want to have answered. That is my first question to the Minister, as to what oversight there is there.

I might be getting slightly into trouble with the Chair, but there was also a piece of legislation last night where there was a form of words around secrecy, notwithstanding other enactments in the tax legislation. I asked the Minister in the chair at the time, the Hon Judith Collins, whether or not that was a dangerous set of words, and whether a precedent was being set. I am not saying that it is within this Part 2 here, but Part 2 in its totality does talk to a lot of the practicalities and operational issues that the intelligence agencies will be dealing with. And I guess if we are going to introduce other pieces of legislation where they can seem to opt out of secrecy arrangements and enactments that this House passes, then I would hate to see it becoming the norm for pieces of legislation. In that case, it was a relatively inane thing around student loans, but it has been the case in other cases of legislation where one piece of legislation has been used and been justified to be in a piece of legislation because it exists somewhere else.

So if I can get an answer from the Minister to that first question as to oversight around clause 14(1A) that would be helpful, because I think that would put a fair degree of people who are sceptical—and I think it would be fair to say there are quite a few—at ease.

It is my pleasure to take a call. Like many of my colleagues, I was not on the Foreign Affairs, Defence and Trade Committee, so I too have some questions around a clause in Part 2 of this legislation, and, specifically—and following on from what my colleague Kris Faafoi, who just sat down, was talking around—it is around clause 16 and the cooperation with other public authorities to facilitate the functions that are contained in this legislation.

There were some amendments at the select committee stage around this, but it is this cooperation, and the lack of cooperation between the key agencies that are identified in clause 16—which are the New Zealand Police and the New Zealand Defence Force (NZDF)—that was identified as one of the key barriers to lifting the sector’s performance. And though the reviewers noted that it was not easily quantified, it was a common theme in both the reviewers’ reports and the officials’ consultation with Government agencies.

The most important relationships are those ones that are referred to in clause 16 of the legislation—that is, between the agencies and the Police and between the agencies and other entities such as the NZDF, Customs, and Immigration New Zealand. So we can see that there are various agencies that need to come into play in order to put this legislation into place, and, as with the questions that my colleague was asking, what we have in terms of clause 16(1)(a) is it is defining those agencies that may need to work together. Clause 16(1)(b) provides “advice and assistance to the New Zealand Police and the New Zealand Defence Force for the purpose of facilitating the performance … of the functions, duties, or powers of those public authorities.” But it is in clause 16(2) where it says that “An intelligence and security agency may perform the function under subsection (1)(b)—(a) only to the extent that the advice and assistance are provided for the purpose of activities that the public authority may lawfully undertake;”.

It is, again, around the oversight of making sure that clause 16(2)(a) is adhered to. Who is it who is ensuring that that advice and assistance are provided for the purposes that are specified within this part of the legislation? Not only do we have to look at clause 16(2)(a) but clause 16(2)(b), which specifies that this has to be carried out “subject to and in accordance with any limitations, restrictions, and protections under which public authorities perform or exercise their functions, duties, and powers; and”—on to clause 16(2)(c)—“even though the advice and assistance might involve the exercise of powers or the sharing of capabilities that the intelligence and security agency is not, or could not be, authorised to exercise or share in the performance of its other functions.” This is an important part of the legislation that was identified in some of the early work around it, in terms of how it was.

I would like some more clarity from the Minister in the chair, Christopher Finlayson, around the mechanisms for ensuring that this is monitored correctly and that these forms of cooperation have been identified as something that does need to be put into place in order for the legislation to operate. I look forward to hearing just a little bit more clarity from the Minister. Thank you.

I am delighted to provide immediate assistance to the member for Wigram, and suggest she read clause 16(3), because an intelligence and security agency provides assistance to a public authority. If it is Police, for example, it will be subject to the Independent Police Conduct Authority (IPCA), and, of course, in relation to the intelligence agency providing the advice and assistance, that agency will be subject to the continuing oversight of the Inspector-General of Intelligence and Security. So I think that that probably answers her question.

I come to Mr Faafoi’s—if I may say so—excellent question about the amendment to clause 14. I think, again, it is important to note that the intelligence and security—Oh, I am not saying the honourable member for Wigram’s question was not excellent; just that Mr Faafoi’s was particularly helpful. [Interruption] I thought that was an excellent recovery, actually. But I do say to Mr Faafoi that he should rest assured that at all times the intelligence and security agencies are subject to the ongoing supervision of the inspector-general, and there is the ministerial supervision as well. So I think, to that extent, that is perfectly acceptable. As I said, if there is any public authority in New Zealand, that public authority will also be subject to its own supervisory requirements. I use the example of the Police and the IPCA, so I think the checks and balances are there.

I appreciate the opportunity to join my colleagues in working through some of the questions, clause by clause, in Part 2 of this very important intelligence and security legislation. Mr Chairman, if you will permit me, I have a series of reasonably specific questions that I seek the feedback on of the Minister in the chair, the Hon Christopher Finlayson, in due course, as suits the Minister.

First, is the language that is common to clauses 9 and 10 of the bill, setting up the functions of the SIS and the GCSB, which uses the phrase “specialises in”—in the former case, “human intelligence” and, in the latter case, “signals intelligence”, both of which relate to their former quite distinct roles. The phrase “specialises in” is, however, non-exclusive—that is, it does not forswear the possibility that the agency may be involved in activities other than, in the case of the SIS, human intelligence, and, in the case of the GCSB, signals intelligence.

I seek the Minister’s comment on whether any limitation is intended, or whether the word “specialises” merely conveys a weighting of activities, and, if that is the case, how the purview of the agencies is, in fact, bounded. When that is combined with clause 11, which follows, the objectives are set fairly widely: “(a) the protection of New Zealand’s national security; and (b) the international relations and well-being of New Zealand;”—which are very broad, and include—“(c) the economic well-being of New Zealand.” It has been common ground across the House that several of the functions, particularly warranting provisions, exempt economic well-being in the definition of national security, but here the definition in clause 11 is broad, which helps me with the inference that I laid out around clauses 9 and 10, that the word “specialise” is probably deliberately non-limiting in terms of those functions. So that is the first area of inquiry.

The second area of inquiry is clause 13, in relation to “Intelligence collection and analysis”. In clause 13(1)(b) the intelligence collected may be provided to one or more of the following: “(i) the Minister: (ii) the Chief Executive of the Department of the Prime Minister and Cabinet:”—and, here is the kicker—“(iii) any person or class of persons (whether in New Zealand or overseas) authorised by the Minister …” who is separately determined as the Minister responsible for the GCSB, or the Minister in charge of the NZ Security Intelligence Services. So the Minister may authorise the provision of that information to any overseas person. Presumably, that would be contingent upon established security relationships.

But wearing the hat that I sometimes have the privilege to wear in the Regulations Review Committee, I say that, as the Minister knows, there is pushback from the legislature against Orders in Council using regulatory powers and only principles-based legislation. Here, of course, the Minister has an even wider ambit than an Order in Council, because it is a simple ministerial decision. So if the Minister could perhaps comment on what boundaries he sees around that action—whether there are other parts of the Act that limits the Minister’s discretion, because at first, plain reading, to myself, who spent only a short period of time on the committee, that ministerial power of passing on information is very broad.

This leads me to another matter, which I may not have time to deal with fully, but a matter of public concern in the past has been whether it has been possible for New Zealand intelligence agencies to collect intelligence on New Zealanders via an overseas partner agency that they may not have got a warrant for—I am not saying they could not get one, but they get information that has not been warranted domestically, perhaps by a partner country intelligence service. I understand that that has been proscribed in this Act, at least as far as New Zealand agencies seeking such information. I would ask the Minister to help us with two things: firstly, to confirm that that is proscribed and to direct us to the provision of the Act that so proscribes that; and, secondly, how that bears upon this clause, in clause 13(1)(b)(iii), where it appears to be an unfettered discretion by the Minister to provide New Zealand - collected information to any relevant person or persons whether in New Zealand or overseas, provided it is in accordance with subclause (3), which itself—[Bell rung] Mr Chairman?

The CHAIRPERSON (Lindsay Tisch): The Hon David Cunliffe.

I do appreciate it, Mr Chairman. Thank you. Subclause (3), of course, is still relatively broad. It requires the Minister, first, to be satisfied that the agency will be acting in accordance with New Zealand law and all human rights obligations, which is some relief, I admit, but the discretion as to the destination of that intelligence information is still very wide.

Since you permitted me the time, I might come to my fourth point, which is in clause 14, “Protective security services, advice, and assistance”. It is a function, in subclause (1), of an intelligence agency, which is either the SIS or the GCSB, “to provide protective security services, advice, and assistance to—(a) any public authority (whether in New Zealand or overseas); and (b) any person or class of persons … authorised by the Minister responsible …”.

Again, at first reading, that seems very broad. The Minister can authorise the New Zealand intelligence agencies, either of them, to provide protective security services to any person or persons or authorities either in New Zealand or overseas—potentially anyone in the world, really. That is a ministerial discretion. I would invite the Minister to comment on what he feels, not personally of course, binds or bounds a Minister in the exercise of that discretion, because—not that one has any reason to doubt the integrity of our agencies—it is the job of the legislature to understand the boundaries that the law provides.

If I flick the page over then to clause 15, my fifth question, since you have kindly allowed me the time, is around clause 15(1)(b). The language there is extremely broad: “doing everything that is necessary or desirable to protect the security and integrity”. That sounds like “by all means necessary”. Admittedly, this is to protect the integrity of the infrastructure, and that reminds me of the Act that this replaces, where that power was broad enough to include the warrantless intercept of New Zealand citizens, but the Prime Minister of the day gave an assurance, which was not incorporated in the law, that that interpretation would not be exercised. I find no legislated assurance in clause 15(1)(b) that ministerial oversight proscribes—or that the law proscribes—any form of action, in this clause at least, against New Zealand citizens. I would like the Minister’s assurance that, at least elsewhere in this Act, the apparently limitless power conferred by this subsection is bounded by other protections of New Zealanders’ privacy and legal rights.

As that is six questions, notwithstanding the fact that there are a few minutes still on the clock, I think that is more than enough, even for a Minister of his overwhelming intelligence, to retain in his head. So I look forward to a couple of other calls later. Thank you.

It is good to have the opportunity to speak on Part 2 of the New Zealand Intelligence and Security Bill. I want to address specifically clause 23, which is the obligation to consult the Leader of the Opposition. I might say that this is a carryover of a function that is currently carried out, a statutory function, which, I might say, the directors of the security and intelligence agencies already carry out, and, I might say—for the sake of completeness—in a very successful way. I have appreciated the advice that I have been able to have in my time as Leader of the Opposition. I raise the point because later in Part 6 I will be referring to another part of the oversight of the agencies, and that is the Intelligence and Security Committee, and I will be talking specifically about the make-up of that committee.

In the MMP environment, the Leader of the Opposition nevertheless continues to play an important role. It is representative of the Opposition and it is a useful touchstone for the Government of the day to be able to deal with issues such as this, where we should be striving for bipartisanship, or at least non-partisanship, and when it comes to issues of national security that ought to be the motivation, and indeed I think is, of pretty much all the members of Parliament.

The difficulty is that although it is, as a matter of public confidence, a good thing for the Leader of the Opposition to be briefed on the activities and functions of the relevant agencies, it is also right that members of other Opposition parties, at least of what I would describe as substantial Opposition parties, or parties in Opposition, should also have access to relevant information about the agencies as a matter of public confidence. If that is not to be by way of direct briefing by the agencies themselves—as happens now, and as foreshadowed by clause 23, when it takes effect—then the other way that that can happen is by adequate representation on the Intelligence and Security Committee.

So the purpose of my contribution is to draw to your attention the value of the provision in clause 23 for the briefing of the Leader of the Opposition. That is important—important for public confidence in the agencies and important for the agencies too, to remind themselves, if for nothing else, that they are to serve Parliament and the people of New Zealand as represented by all sides of Parliament. But I also draw to your attention that that alone will not be enough, in terms of keeping members of the Opposition, or at least parties in Opposition—particularly when we have a set-up like we do at the moment, with one large party in Opposition leading the Opposition and two significant parties in Opposition, specifically the Green Party and New Zealand First. There does need to be another means of at least keeping those parties informed and, to the extent that public confidence is achieved by keeping those parties informed, keeping them involved in an appropriate sort of way. Perhaps the Minister might like to reflect on how clause 23, when it takes effect—the assurance that it provides can be made real just through the briefing of the Leader of the Opposition, if we are not to ensure good and adequate and proportional representation on the Intelligence and Security Committee. I leave that point there.

I just want to refer to a couple of the contributions that have been made by my own colleagues. The Minister in the chair, the Hon Christopher Finlayson, can correct me if I am wrong here, but the questions that have been asked in respect of clause 14 about protective security services, advice, and assistance that might be provided, for example, by the GCSB are not about intrusive powers of the State. Those intrusive powers of the State are dealt with in later parts of the legislation—covert activities in Part 3 and surveillance activities or warrants that you might get against parties are dealt with in Part 4. What this is is actually generally helpful advice that is being provided by arms of the State to those who need it.

The real example I will give is that the GCSB has a programme now that assists New Zealand companies to protect the integrity of their systems from cyber-attacks. This is a very real issue in New Zealand and around the world, and you only need to read what has been happening in respect of the interrogation of the Democratic Party’s electoral efforts by Russian operatives, which is alleged to have occurred in the United States, to know that these things, if not protected against, can actually undermine local democracy.

Another example that I like to use is that of course we use computer systems now to operate our infrastructure. An obvious example is that Transpower and the generation companies have computer systems that control when dams are opening for their water to come through and generate electricity and where electricity is directed around the grid. If those sorts of computer systems are breached by people who have got an improper purpose, they can wreak considerable havoc to our economy. Not all of the people who might want to do that are acting in the best interests of New Zealand, and I think it is important in a small country like this, in New Zealand, where we have repositories of expertise such as that which lies in the GCSB but not in the Police or other agencies, that on occasions they run programmes with the private sector to give of that expertise to the private sector in order to protect our infrastructure.

So that is actually what clause 14(2) is actually doing. It is allowing the GCSB to provide: “(a) services and advice relating to developing and implementing protective security arrangements, including arrangements for— … (ii) information security (for example, information assurance and cybersecurity activities);”. These are actually real activities that the GCSB currently undertakes and should be able to undertake in the future, and therefore I think that, properly read, clause 14 is not about intrusive powers of these agencies; it is about powers of assistance. If I have got that wrong, I am sure the Minister in the chair will tell me.

I would like to start with new clause 19A, “General duties applying when intelligence and security agency performing functions”, in its entirety. It says: “When performing its functions, an intelligence and security agency must act—(a) in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and (b) in the performance of its operational functions, independently and impartially; and (c) with integrity and professionalism; and (d) in a manner that facilitates effective democratic oversight.”

If I look at those clauses and then flick back to clause 15(3), I am just a little confused in that it says “An activity described in subsection (1)(a) may be carried out by the Government Communications Security Bureau—(a) without an authorisation if that activity is—(i) a lawful activity;” or (ii) the activity would otherwise be an unlawful activity but is a lawful activity because it is carried out with the lawful consent of public authority, person, or class of persons. When we go back to clause 19A, when it says that when performing its functions, it must be in accordance with New Zealand law and all human rights obligations recognised by New Zealand law, the question is: how can something be conducted without an authorisation if the activity would otherwise be an unlawful activity?

I am not sure what that is saying, and then it is saying “but is a lawful activity because it is carried out with the lawful consent”. So is it saying an unlawful activity can be made lawful if it is carried out with the lawful consent of a person or authority? Then the next question is this: does that mean something can be given retrospective lawful consent, and, if that was the case, would it actually be lawful consent if an activity was carried out but it retrospectively had to be given lawful consent?

Clause 15(3)(b) states that an activity described may be carried out by the GCSB “with an authorisation if that activity is—(i) not otherwise a lawful activity; and (ii) not undertaken with the consent of the public authority, person, or class of persons.” I could be reading this wrong, but it sounds like something can be done by the GCSB that is not a lawful activity and not carried out with the consent of the public authority, and yet clause 19A(a) says that “When performing its functions, an intelligence and security agency must act—(a) in accordance with New Zealand law;” It just seems to me to be contradictory, and I am confused by that in the first instance.

The second question I would like to ask is around clause 16(4)(c). The director-general of an intelligence and security agency and an employee of an intelligence and security agency are immune from criminal liability for any act done under this section in good faith in providing advice and assistance to the New Zealand Police or the New Zealand Defence Force if—and I go down to paragraph (c)—“the act could have been lawfully carried out by the New Zealand Police or the New Zealand Defence Force, as the case may be.” The question is: if it could have been carried out by the New Zealand Police or Defence Force, what would be some reasons why it was not carried out by them? Why would they risk criminal liability if it could have been carried out by the New Zealand Police or the New Zealand Defence Force in the first place?

So those are just two questions that I have. Like other colleagues of mine, I have not been involved in the process of determining this at all, but those are just a couple of questions that have sort of leapt out at me. I am sure they could well be cleared up quite easily, but for now I find them quite confusing.

I would like to point to clause 20, which talks to “Specific duties of Director-General of an intelligence and security agency”. I think in Part 2—and, I guess, in the total of this bill—this is an important clause, because it goes to the integrity of the service and to making sure that there is an onus on the director-general of one of our intelligence agencies to make sure that our intelligence agencies perform and that they are without undue influence. Clause 20 goes on to say: “The Director-General of an intelligence and security agency must take all reasonable steps to ensure that—(a) the activities of the agency are—(i) limited to those that are relevant to the performance of its functions;”—I think that is fair enough—“(ii) kept free from any influence or consideration that is not relevant to the performance of its functions.” Clause 20(a)(iii) states, I think importantly, that the agencies must be “politically neutral (for example, the activities are not carried out for the purpose of promoting or harming the interests of any political party or candidate);”.

I think that is a very important clause within this piece of legislation. I do not want to dwell on it, but Mr Parker did allude to it earlier where there was, I guess—I am trying to be diplomatic—a disagreement between the former Leader of the Opposition and now Auckland mayor, the Hon Phil Goff, and, I think it was, at the time, the Director-General of the Security Intelligence Service, Warren Tucker, over whether or not a briefing had been or had not been delivered to the Leader of the Opposition at the time. The issue at the time was the release of an Official Information Act request as to whether Mr Goff had in fact been—

The ASSISTANT SPEAKER (Lindsay Tisch): Come back to the bill.

—unfairly treated and, potentially, non - politically neutral.

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

Kia ora mai tātou. Tēnā tātou katoa. Members, the Committee is resumed. Before the dinner break we were debating Part 2 of the Intelligence and Security Bill. Kris Faafoi has the call and has 3 minutes remaining. I call the Hon Chris Finlayson.

Come out, come out, wherever you are, Mr Faafoi. But what I will do—

💬 Iain Lees-Galloway: I will listen on his behalf.

Thank you very much. Look, there are a number of points that were raised just before the dinner break. Mr Faafoi was emphasising a very important point in clause 20, “Specific duties of Director-General of an intelligence and security agency”, and, in particular, the importance of maintaining political neutrality. I know that has been the subject of quite a lot of debate in recent years, and all the points, with respect, are fairly made. We just need to make sure at all times that these agencies that have huge, intrusive powers do their job properly and are scrupulous about maintaining political neutrality. In so far as he was emphasising that point, I do not think anyone would take issue with that.

Mr Parker raised a number of helpful points, and I will just quickly run through what he said. In respect of clause 14, he had a very helpful summary of exactly what that clause is actually aimed at: the provision of security services, advice, and assistance by the two intelligence agencies. But I would simply say that clause 14 has to be read in conjunction with clause 15(4), because there will be circumstances that require a warrant, even when safeguarding services are being provided.

Can I come to Mr Cunliffe’s questions. The member for New Lynn raised a couple of issues about clause 9 and focused on the word “specialises”, and then, similarly, on clause 10 and the word “specialises”. Look, the point that I need to emphasise is that the SIS was carved out of the Police in 1946 and became the human intelligence agency. For many years no one was prepared to acknowledge the existence of the signals intelligence agency—the GCSB. Then, in 1977, it was Robert Muldoon who said: “Well, yes, the signals intelligence agency exists.”, and then it was under Helen Clark’s Government that it received its first piece of legislation, in 2003.

I guess the word “specialises” in both clauses 9 and 10 recognises existing capability, and, throughout, the Government has been adamant that there is no intention to merge the agencies, although there may be circumstances, for example, in relation to financial management or human resources, or matters such as that, where they may share some services. But there is no intention to merge. In other words, the SIS focuses on human intelligence and the GCSB focuses on signals intelligence. But sometimes it could be said that the boundary is becoming blurred. A lot of human intelligence work can happen online—reference to Facebook, for example, and that sort of stuff. That said, the powers in the warranting regime—and we will come to that in due course—are designed to reflect these specialist capabilities, with the SIS having, if you like, real-world powers and the GCSB powers being framed in terms of information, infrastructure, and cyber-activities.

Mr Cunliffe also had a question on clause 13. The constraints in the bill for clause 13(1)(b)(iii) exist in the purpose provision of the bill. It is very important to bear in mind at all times the purpose provision of the bill in Part 1, which deals with preliminary provisions, but the purpose comes back to protecting New Zealand as a free, open, and democratic society. I will not go through the clause now, but it ties it back to New Zealand’s interests. So the purpose is New Zealand - centric. It is focused on the protection of New Zealand interests, and it is also subject to clause 13(3), which requires the Minister to be satisfied that provision of intelligence is subject to New Zealand law and human rights recognised under New Zealand law.

He also raised a question about limits on clause 14. I think I have probably covered the point, but I just emphasise that, ultimately, anything done under clauses 14 and 15 must be either lawful or—as I said in response to what Mr Parker said—done under a warrant. Then he raised a question about clause 15(1)(b), and focused on those words “everything that is necessary or desirable” and thought that was rather loose. Clause 15 makes it very clear that anything unlawful has to be warranted, and I refer the honourable member to subclause (4). It is a point I have raised on a number of occasions now, but it is good that I am able to emphasise that point.

Mr Davis raised a question about clause 16, and particularly he asked for the circumstances where assistance could be provided in terms of subclause (4), and the kind of assistance I am talking about is the provision of assistance to the New Zealand Police or the New Zealand Defence Force. The answer to that is that this is where both the GCSB and the SIS have powers that other agencies do not have, and, in a way, it is to stop the necessity for the Police or the Defence Force having to replicate, at a very high cost, the specialist capabilities of the intelligence and security agencies.

Finally, I refer to what the Leader of the Opposition was saying in relation to clause 23. I agree with him that it is incredibly important in our kind of system, not only for political neutrality reasons but also for the good governance of the country, that the Leader of the Opposition be consulted on a regular basis by the intelligence and security agencies. I hear what he says about other parties in the Parliament. I am simply going to say that when we get to Part 6 and we have a discussion about the Cabinet committee on intelligence and security, I can deal with some of the points that Mr Little raised at that stage. So I think that picks up all the various points that were raised by members before the dinner break.

I would like to thank the honourable Minister for his leadership on the New Zealand Intelligence and Security Bill. The security and safety of Aotearoa New Zealand and, indeed, all of our people is crucial, and this is a very important bill. In my brief contribution, I would like to discuss clause 11, which is about the objectives of intelligence and security agencies as they contribute in this legislation.

Clause 11 states: “The principal objectives of the intelligence and security agencies are to contribute to—(a) the protection of New Zealand’s national security;”. In this legislation, as I understand it—I was not fortunate enough to be a member of the subcommittee when folks came to present to it—the term “national security” was not previously defined. I know that it is now defined, but what I would like to ask the Minister is whether he, as Minister, is satisfied with the definition that is now given to national security in this particular bill.

Also, when we go to clause 11(c) it says that one of the principal objectives of this legislation is for the “the economic well-being of New Zealand;”. My question to the Minister is this: is “well-being” defined in this legislation? That is the first question. The second question is with regard to paragraph (c): “the economic well-being of New Zealand.” Is it clearly defined in this legislation? I am not clear in my reading of this bill whether it is indeed defined.

The other question I would like to pose to the Minister—this was covered by the Law Society, and it was agreed to by the Inspector-General of Intelligence and Security—is about the fact that the term “principal” is still included in clause 11. Using the term “principal” before “objectives” creates uncertainty, because it implies that the GCSB and the SIS may have other unstated secondary objectives that might not be clearly stated in this legislation. So I would like to ask the Minister why the term “principal” in front of “objectives” is still currently used. Clause 11 is indeed a very important clause because it establishes the boundaries within which the Government, the CCSB, and the SIS may exercise the functions and powers that are given to them under this bill. So it is indeed crucial to ensure clarity around meanings and around whether or not the word “principal” should indeed still be in front of “objectives”.

I would like now to move to clauses 13 through to 15. In these clauses, it talks about “public authority”. Clause 13(2)(a), clause 14(1)(a), and clause 15(1) provide that the functions of the GCSB and the SIS will include the provision of assistance to “any public authority (whether in New Zealand or overseas);”. So my question to the Minister—and this is, again, an issue that both the Inspector-General of Intelligence and Security and the New Zealand Law Society agree on—is that “public authority” should be defined. It is not clear that there is actually a definition for “public authority” in this legislation. It should be a term defined, because we should ensure transparency of the legislation as well as the ability of agencies to be able to assist and advise as under this bill. It should be clarified and defined.

I would like now to move to clause 16, and I would like to thank the Minister because he has, in his previous contribution, already answered some of the questions I was going to ask about clause 16. Thank you very much.

I just want to pick up on one point the previous speaker, Jenny Salesa, had raised and put a slightly different slant on it, and, with respect, request the Minister to respond to one specific issue in clause 11. As I think became clear in the course of the Foreign Affairs, Defence and Trade Committee’s discussions, the issue of national security, I think, was handled with considerable insight, and we in the Green Party are quite reassured on the delineation of the nine harms identified in relation to national security. That said, we do have views on the manner in which that impinges on the bill as a whole, and we made that clear, especially in the second reading debate.

But the point I wanted to raise is in terms of one specific concept and that is in clause 11(b) “well-being” itself, because the previous speaker picked up on “economic well-being”. But as I think I pointed out in my second reading speech, I think we now have a bit of an idea about the concept of national security. I think we know traditionally what “international relations” means, and I think we know traditionally what “economic well-being” means. I do suggest—and I did suggest in the second reading, and I would like to put it to the Minister—that the concept of “well-being” in itself is just a tad too broad and amorphous when there are criminal penalties in a bill. I would invite the Minister to give—certainly it is not in the interpretation clause—his succinct interpretation to the Committee of what “well-being of New Zealand” means.

💬 Hon Christopher Finlayson: I would be very happy to do that immediately—

Hon Christopher Finlayson.

Mr Chair, I apologise for forgetting about the salutation. But no, it is a very fair question. Under the previous legislation, there could have been issues about whether or not an anti - Trans-Pacific Partnership (TPP) campaigner could have been arguing or contending against the economic well-being of the country by opposing the TPP. In fact, the wording of the existing legislation is very vague in that regard. But when you look at the term “economic well-being of New Zealand”—and we will come to it when we deal with the warranting regime and the much better definition of “national security”—I think the honourable member will find that will not be possible.

💬 Dr Kennedy Graham: I raise a point of order, Mr Chairperson. Just to continue the interesting conversation—

The CHAIRPERSON (Hon Chester Borrows): Take another call. You have got three left.

Can I just comment on what the previous member said, because I think she raised a number of very important points about clause 11 and that word “principal”. What does that mean? Are there some hidden deep - State subsidiary objectives that are not to be spelt out in the legislation?

I thought that was a very good question, with respect. I think that what we are dealing with here are the objectives that capture the key work of the intelligence and security agents. The collection of foreign intelligence, for example, enables New Zealand to understand key international developments that may present a risk or an opportunity to this country. It also enables work in support of other countries, to help, for example, to reinforce international law, detecting illegal fishing in the Southern Ocean—matters such as that. Action taken in pursuit of these objectives also enables the Government to make decisions in the national interest across a broad range of foreign-policy objectives. But I would emphasise to her that there is no hidden meaning behind the word “principal”—that these are the principal objectives but there are some kinds of unstated objectives that somehow need to be brought out into the open.

Can I also simply say to her—she raised a question, I think, about what a “public authority” is—that it is actually defined in the interpretation clause. It is an additional definition that has been included by the select committee. I will not go through it now, but it is set out for her there.

I apologise to the Minister if I did not make myself very clear. I will try to make it much more succinct. I am referring to clause 11(b) not clause 11(c). I am not referring to “economic well-being”; I am referring to clause 11(b)—the concept of “well-being of New Zealand”—which is far broader. I also made the point in the second reading that it is a bit conceptually confusing when “economic well-being” is a subset, presumably, of well-being, and it is identified separately—but that is a secondary thing. The principal question in my mind is what is anything approaching a clear definition of the concept of “well-being of New Zealand” when there are criminal penalties in this legislation?

While the Minister is pondering that very interesting intervention by Dr Graham, that was not the first point I was going to make, but I will make it now as the first point so that it carries on.

I can recall in the 1990s arriving along to a select committee as a student politician to make exactly the same point that Dr Graham has just made—but, in this case, about economic well-being—and to try to understand exactly what that meant, because that terminology has now been in the Act for some time. I appreciate the comment that the Minister made about the fact that the way it was drafted previously could easily have said that those of us who stood out on the steps of Parliament and said that we did not like the Trans-Pacific Partnership (TPP) or aspects thereof could easily have been seen to be within this. And, in fact, I suspect that in the past this is precisely the justification some intelligence agencies have used for their monitoring and surveillance of people. So I think that certainly was the case, and it will be interesting, as the Minister says, as we go through, to pick up the difference there in terms of how the legislation is written now in terms of the warrants later on.

I do just want to pick up the point that Kennedy Graham raises, which is that I wonder about clause 11(b), because if the clause is to be coherent, the well-being of New Zealand and the international relations of New Zealand must have something to do with each other, because clause 11(a) is New Zealand’s national security, which, in the broadest sense of the word “well-being”, means how New Zealand performs. So this is something to do with the way in which New Zealand’s international relations work—our relations with other countries. That is the only way that this clause would make any logical sense to me. The Minister is doing some nodding, which could be related to virtually anything, but it could be related to what I am saying.

💬 Hon Christopher Finlayson: Ha, ha!

Ha, ha! So at some point we might have him back on his feet to tell us whether the “well-being” is related. That will only half help Dr Graham, because that still does not tell us exactly what it is. Although it might now locate it alongside our international relations, what exactly the “well-being of New Zealand” is is fairly amorphous to me, so I look forward to the Minister’s help on that.

The point I wanted to raise is actually a relatively minor one, but I was not here for the early part of the debate on Part 2, so apologies if this has been covered. I am looking at clause 23, which is “Director-General of an intelligence and security agency to consult Leader of the Opposition”, and although I am absolutely satisfied that this clause will stand and go through, I do think it is important to put on the record two things about this. One is the importance of it. The importance of the fact that if we are going to have the kind of cross-party—bipartisan in this particular instance here—approach to security and intelligence matters, we do need communication to be clear and important.

I do not want to rake over the Warren Tucker - Phil Goff incident again, because it got a bit of an airing in the second reading, but this is, of course, the very situation that led to that dispute, and I think that although in a piece of legislation we would not go to the level of detail of talking about how those meetings take place, it is important to put on the record that they do need to be ones that safeguard the integrity of both the director-general and the Leader of the Opposition. We in the Opposition certainly took to having two people present for those meetings in order to ensure that there was a witness. I was one of those people when I was the deputy leader for a period of time, and, again, I would not necessarily say that that has to be in the legislation, but I think it is an important thing to put on record. Similarly, the director of an agency may well choose to do that also.

The second point I wanted to make about this is that I do think that in the future this is what a proper oversight body would actually also be able to have some access to—these briefings. I know it gets harder the more people who become involved, but I do think that if we are going to increase the confidence of New Zealanders in these agencies, a slightly broader mandate for the director-general to be talking to the oversight body about the kinds of things that they are involved in, without all of the detail, is important, because having been in those briefings, it is up to the director-general what they tell the Leader of the Opposition. It has been designed, I think, to give a flavour of the work, as opposed to actually going through specific incidents or specific cases. I think that, over time, this could be clarified more in practice, and, as I say, it does not necessarily need to be in the legislation.

So, to summarise my point on this, this is an important clause. It should be here, but in practice it has a number of fishhooks that need to be worked on and, in my view, could actually be expanded in the future to the wider oversight body. I look forward to hearing about Mr Finlayson’s well-being.

I just wanted to comment briefly on clause 23. I, first of all, want to just talk about the meaning of “consultation”, because it is often used in legislation and it is often not used very clearly in legislation, and this is one of those occasions. We do not really know what we are talking about when we talk about, in terms of clause 23, “consultation” between the director-general of an intelligence and security agency and the Leader of the Opposition.

Consultation, generally, can be for one of three purposes: (1) it could be consultation for information, which is just passing information from one person to another and nothing more; (2) it could be consultation for participation, which implies that there would be an expectation of feedback and some discussion; or (3) it could be consultation for collaboration, which takes a step further, meaning that the expectation of the consultation would be some attempt at reaching consensus or even joint decision-making. It could even go that far.

So just to put word “consultation” in legislation actually does not take you very far. It leaves it open as to what that really means, and that is the problem that we are having with this clause here tonight. So I am not very concerned about it—I might say—but if others are concerned about it, then it would be dealt with effectively by describing what the purpose of the consultation was.

The second point I wanted to make about clause 23 is that it refers only to the Leader of the Opposition and not to any other Opposition party. So I wonder as a result of that whether the Leader of the Opposition would then be expected to take a further consultative step by talking to the leaders of other Opposition parties, whether that is intended or not or whether the intention is that it just be the Leader of the Opposition and he has no expectation or authority—that is probably a better word—to reveal that information to anybody else, even within his own party, let alone the leaders of other parties.

So what actually is the intention here? Is it that the Opposition as a whole would be involved in this or is it just one person? It is not clear to me and, again, I am not very concerned about the whole issue, but if others are, then that is another point that could probably be covered off, not just by way of explanation by the Minister in the chair, Chris Finlayson, but by amending the clause itself. That is some food for thought, Minister.

I just have one further and, I think, final comment on my previous point about clause 11(b), and I am picking up from Grant Robinson’s intervention, which I thought was very useful. Obviously, it in the same subclause: “the international relations and well-being of New Zealand;”. He inferred that the two are somehow interrelated. That may be, but it is not clear in the legislation and it is not a necessary inference. So we have to conclude, I think, that the concept “well-being of New Zealand” stands on its own—separate and discrete. I still think that it is problematic if it is left undefined. National security is, as I say, there in clause 55A and we do traditionally understand what we mean by “international relations”.

To meet Mr Robertson’s point, you could say “the positive international relations of New Zealand”, but if you just say “well-being of New Zealand”, it is wide open to abuse or maximum and broad interpretation. I will give you just one quick example. A country that relies on and embraces the doctrine of nuclear deterrence, for example, would presumably interpret the well-being of that country to include the possession and potential use of nuclear weapons. New Zealand, on the other hand, has legislation that disbands, disavows, the possession of nuclear weapons for itself. So presumably, therefore, necessarily, the well-being of New Zealand rests on a repudiation of nuclear deterrence. Those are diametrically opposed concepts. So you could have, in intelligence legislation in two countries—if it were “Five Eyes”—partners engaging in espionage on two different people who are saying entirely different things on the grounds that it is meeting their legislation. I know we are just talking about New Zealand, but I think it reinforces and highlights the problematic nature of a broad concept that is undefined, when there are criminal penalties in the same bill.

On reflection, we did not put it into a Supplementary Order Paper. The same problem does not pertain to national security, because clause 55A(2)(d) talks about the proliferation of nuclear weapons. So the concept of national security is constrained and defined; “well-being” is not, anywhere in the bill. So we may want to, before we conclude the passage of the bill through the Committee, just reflect further on whether clause 11(b) might be better served if there were an appropriate adjective in front of “international relations”, and if the undefined concept of “well-being” were omitted. Thanks.

Tēnā koe, Mr Chairman. Thank you for this opportunity. Clearly, what we are trying to do here is modernise our intelligence and security legislation, which needs to be commended. Just on Part 2, just prior to our dinner break my colleague Kris Faafoi raised an issue. I cannot pretend that it is the same issue that I am about to talk to, but it was in relation to clause 20 in Part 2, “Specific duties of Director-General of an intelligence and security agency”, where we lay out that their duties are taking “reasonable steps to ensure that—(a) the activities of the agency are—(i) limited to those that are relevant to the performance of its functions; and (ii) kept free from any influence or consideration that is not relevant to the performance of its function; and (iii)”—which really comes to, perhaps, my question for clarity for Minister Finlayson—“politically neutral (for example, the activities are not carried out for the purposes of promoting or harming the interests of any political party or candidate);”.

I guess the question that I would like to ask is whether that is limited to New Zealand political parties and New Zealand candidates, or whether it is much broader. Clearly, we could meet that particular threshold, but it may have wider implications. Can I ask that we turn to clause 13, in terms of being politically neutral, which I think is a very, very high standard and should be supported. When I read clause 13 in Part 2, we talk about intelligence collection and analysis and we talk about the function of the intelligence and security agencies, which “collect and analyse intelligence in accordance with the Government’s priorities;”. I guess my question, and I would welcome the Minister’s explanation, is how we ensure that in assessing the Government’s priorities—and it says in clause 13(1)(b) that once that intelligence is gathered and analysed it is provided to the Minister, the Chief Executive of the Department of Prime Minister and Cabinet, and other persons—we uphold clause 20(a)(iii) in terms of maintaining our political neutrality. I am just making sure that we have got those checks and balances to ensure there is no over-interference from Government priorities, as per clause 13(1)(a) and the clause that I am seeking some clarification on, which is clause 20.

That is really just a short contribution. I am keen to hear from the Minister in relation to clarifying that. Thank you.

My apologies if this point has already been covered, but I am referring specifically to clause 13(1)—this is about the intelligence collection and analysis—which reads: “It is a function of an intelligence and security agency to—(a) collect and analyse intelligence in accordance with the [New Zealand] Government’s priorities;”. My question is how those priorities are determined. Are they set priorities? Have they been determined somehow? Or are they determined regularly and reviewed regularly? Because it says “in accordance with the [New Zealand] Government’s priorities;”, my assumption is that the Government—i.e., Cabinet—would determine what those priorities would be.

Another question is whether the Leader of the Opposition, under clause 23, I think it is, gets consulted about these priorities, and whether the Leader of the Opposition actually has any input into them. Because they are the Government’s priorities, the question is whether it would need to collect and analyse intelligence in order to determine its priorities in the first place, before it then went on to collect and analyse intelligence in accordance with the priorities. So do they need to actually get data and intelligence to determine the priorities before they get data and intelligence to set those priorities, as per clause 13(1)(a)? The questions are how those priorities are determined, what data and analysis needs to be gained and collected so that you can actually make a determination of what the Government’s priorities are, and then, when you know what those priorities are, whether the Government then has to collect and analyse intelligence in accordance with those priorities. For me it is just, again, a little bit confusing.

I also have a question around clause 17, “Co-operation with other entities to respond to imminent threat”. It would be interesting to know what the definition there of “threat” is. I will just read clause 17(1): “It is a function of the intelligence and security agencies to co-operate with, and provide advice and assistance to, a person, class of persons, or public authority (whether in New Zealand or overseas) that is responding to an imminent threat to the life or safety of”—and, then, this is paragraph (b)—“any New Zealand citizen who is overseas;”. The question there is a threat by whom, and, to hark back to another of my pet issues, whether this includes New Zealand citizens overseas who are at threat of being detained without having committed a crime, such as in Australia.

In fact, I am dealing with a situation now with a 23-year-old podiatry student from Melbourne, who has been detained without committing a crime. She has not been informed of why she has been detained. Is this an example of a sort of threat to a New Zealand citizen? Of course, we know that some of the threats and dangers to people in detention centres are threats of self-harm, threats of assaults, and issues around mental health issues. How far will we go to protect New Zealand citizens overseas? Is a threat of detention without committing a crime one of the threats? Are we talking about threats to New Zealand citizens by overseas jurisdictions—Governments—or are we talking about threats of being assassinated, or something like that, by some terrorist organisation? I seek clarification of those two issues: setting priorities, and the threats to New Zealand citizens overseas. Thank you.

I move, That the question be now put.