Intelligence and Security Bill

I will just say one or two things about this part, which provides for the creation, use, and maintenance of individual assumed identities and legal entities that are used for cover purposes in order to protect the secrecy of the intelligence and security agencies’ work and activities. There were some changes—as one can see—in the course of the Foreign Affairs, Defence and Trade Committee’s consideration, but I really want to focus on the third subpart.

Part 3 comprises three subparts; the first enables the acquisition, use, and maintenance of assumed identities by employees of the security and intelligence agencies. The changes that have been made in the course of the select committee’s deliberations are not major there. Then the second subpart deals with corporate identities. In many respects, actually, it mirrors the first subpart, except that it provides for the creation—including the conferral—of a particular legal status, the maintenance, and the use of legal entities through which an intelligence and security agency may conduct transactions in order to keep its activities secret.

The final subpart—which I really think is the one that, maybe, members will want to focus on—is Subpart 3, and that has been added following the work of the select committee. It creates a requirement for the agencies to maintain registers of assumed identities and legal entities that have been created and maintained under Subparts 1 and 2—and I particularly refer honourable members to clause 45A(3). That register is able to be accessed at any time by the Minister responsible for the particular agency and by the inspector-general. Obviously, the maintenance of a register is an extremely important concomitant, if you like, of the need for accountability.

💬 Grant Robertson: Cancomitant?

Concomitant—I am sorry, I did not realise my pronunciation was so poor. So I think that is where the discussion is. These are powers that, as one can see, for example, in Subpart 1, any intelligence and security agency will require, both in relation to the individual and in relation to corporate identities—Subpart 2. But the all-important control of the register is able to be accessed by the Minister or the inspector-general at any time.

I call Grant Robertson.

💬 Hon Ruth Dyson: Oh, good choice—good choice.

Yes, well there was no other choice, in fact—

💬 Hon Ruth Dyson: Regardless.

—but thank you, Mrs Dyson. So Part 3, as the Minister in the chair, Chris Finlayson, has said—I guess for ordinary people thinking about intelligence agencies, this is what they think about: the excitement of an assumed identity and taking on the identity of somebody else. I invite members in the Chamber—

💬 Kelvin Davis: It’s the Maxwell Smart club.

—that is right—and those watching along at home to perhaps play a little game that I was taught, possibly when I worked for a large foreign ministry, which is that if you want to create your own spy identity, what you should do is take your middle name and the street where you grew up, or where you lived for the longest when you were growing up. So your middle name is your first name and your last—

💬 Iain Lees-Galloway: Francis Robertson, thank you very much.

There we go, so here is “Francis Robertson”. I myself am “Murray Pretoria”—ha, ha—which I think makes me sound like a South African spy, but that is me. So I invite other members of the Committee to have a think about where they are at in terms of their identity, should they require their own identity under Part 3, Subpart 1. I will perhaps think, for a second call, of what a corporate assumed identity might be based on. I will have a think about that, but on behalf of “Murray Pretoria”, I stand to make this speech under Subpart 1.

Actually, in all seriousness, the part that I wanted to focus on here is actually the one that the Minister has highlighted, around Part 3, Subpart 3. Firstly, I want to say that this is a very positive development, because in all parts of this bill, striking the balance between enabling the agencies to do the job that we, as New Zealanders, need them to do, but having the checks and balances in place to protect New Zealanders’ privacy and also to protect the integrity of the service, is vital. The best way to do that is to have some form of transparency, and that is what Subpart 3, “Register of assumed identities and legal entities created or maintained” creates.

I think it is a very thorough piece of work in this part, because it provides that on each request and on each direction that is given in terms of taking on an identity, it is required for that to be entered into the register, and, indeed, the point at which it is cancelled as well is also part of it. This is excellent work, I think, from the Foreign Affairs, Defence and Trade Committee—to put this in here—and as the Minister noted himself, in Subpart 3, clause 45A(3), what is essential is that there is at least somebody who can access that register. On this clause, it is the Minister responsible for the agency and the Inspector-General of Intelligence and Security.

In a previous life I would have had some concern about the fact that it was only the inspector-general. I think we have not always been so brilliantly well-served by people in that role, but we are now, and the inspector-general’s office has had significantly more resources put into it; it is now able to play a role. I would hope that the inspector-general would be taking a relatively proactive view of the register, and making sure that the register is being accessed on a regular basis to ensure that the agencies are meeting their obligations under Subpart 1 and Subpart 2 of this part.

I think, for the most part, I am comfortable with what is in here. The definition section does, obviously, indicate what an authorised person is. That was changed by the committee, and I do not know that there is any significance in that change, but the Minister may choose to let us know if there is. Obviously, not only to facilitate the register, there were the additions within Subpart 1 around the record being publicly available if an agency, in the ordinary course of activities, makes that record available for public inspection or searching. I do wonder whether the Minister might want to tell us under what circumstances that would occur. What are the boundaries around whether an agency would make it public? I think, you know, as I say, the more transparency the better in these situations, but it would be good to understand exactly the balance that is attempting to be struck there. Just before I run out of time, the clause where that is mentioned is 25(2). So if the Minister could give us a bit of help with that, that would be appreciated.

In the debate on this part, I am looking most forward to the contribution from the ACT Party, because the ACT Party has got more experience in assumed identities than any other party in this House. I well remember David Garrett, having railed against name suppression and discharges without conviction, was exposed for his hypocrisy for having had both—actually, with assistance from Garth McVicar from the Sensible Sentencing Trust, which is not a tag that most people would attach to his views. But David Garrett assumed the identity of dead babies.

When he was eventually found out, he said he was modelling his behaviour on The Day of the Jackal. Interestingly, the real person who lies behind The Day of the Jackal is in court again, I think, at the moment—in Paris, is he not, for his involvement in murders back in the 1970s. Anyway, David Garrett was one of the people who took the ACT Party from a number of members down to one; it is largely a political irrelevancy that survives as some sort of vestige—a bit like a tail that you no longer need—that the National Government relies upon for one vote. I am looking forward to hearing from David Seymour.

💬 Iain Lees-Galloway: If that’s his real name.

If that is his real name, David Seymour—that is right. I have the privilege of standing against him in the general election this year, in the Epsom electorate, so I am hoping that he is going to take a call here. If he does not, I think I might have to raise it on the hustings.

Can I mention a more serious matter. This is another area in this part of the bill where the Government, because it has been willing to listen to the select committee and to engage with the Opposition, has got to a good outcome. The rule made around the requirement to keep a register of assumed identities, which is available for scrutiny by the inspector-general and the Minister—but particularly by the inspector-general—is a very good outcome.

Can I say, Minister, that one of the reasons why I am so pleased that the House has got agreement largely across the House on this legislation is actually the protection of public confidence in democracy. I think that in New Zealand we really ought to be taking a bow on this, compared with what is happening in other countries where the polemic of debate in democracies has become so extreme that everyone is taking extreme whacks at each other—whether it is the Republicans against the Democrats, or Trump against the media, or what is happening in Australia, where their debates are becoming very polarised. It is actually undermining public confidence in the very institutions that protect democracy.

I think we can be thankful that through the more measured approach that we take in this Parliament with the major parties, and other parties supporting them as well, and also a slightly less polarised media debate than we have from some of the awful websites that are spreading fake news and the like in America, we are actually managing to maintain public confidence in our democratic institutions.

As someone who believes very strongly in the importance of democracy, because it is so much better than autocracy or theocracy or other forms of totalitarianism, I really believe that we are doing a service to our people. We are trying to find the appropriate balance between the powers of the State and the protections of the rights of the privacy of citizens against excessive State intrusion. Through this bill, which, as I have said previously, I think is certainly better than our current laws—and I suspect it is probably amongst the best oversight legislation of spy agencies in the world—we are actually showing that our democracy can work to protect the interests of the people, and therefore we maintain greater confidence in democracy. People are more likely to vote. They are more likely to participate in civil society. They are less likely to throw things at each other. They are more likely to respect laws. They are more likely to respect the property rights of others, and they are more likely to try to reach out to each other, across the centre, in order to reach the compromises that we need to in society, in order to run a prosperous and fair society.

With that, I think that is all I need to say on this Part 3 of the bill. It has the Labour Party’s support. I agree that the changes made to clause 45 are appropriate.

I am glad that the Foreign Affairs, Defence and Trade Committee took so much trouble over Part 3 and all of its subparts, because it is the part of the bill that New Zealanders would probably be most interested in. It conjures up—

💬 Grant Robertson: What’s your spy name, Denis?

My favourite movie was The Third Man. I do not know whether you remember it, but it is a very good classic movie.

💬 Tim Macindoe: You’re showing your age.

Yes, it does show my age. This part of the bill really conjures up all of those images that you see in that movie—the trench coat, the wide-brimmed hat, the dangling cigarette, and the muttered conversations in shady places. It is very much like the way the National caucus works, actually. For those reasons it is the part of the bill that New Zealanders would be most interested in.

The thing that would offend people the most would be to find that somebody with an assumed identity had intruded in some way into their lives. Nobody would like that. It is humiliating. It is a very underhanded way of obtaining information. So for all of those reasons it is very important that the terms and conditions under which that is allowed and the particular provisions in the authorisations are very important. That is why I agree with what Mr Robertson said about the register, which is a very, very good way of counterbalancing the intrusion that an assumed identity can have into people’s lives.

If there is a register it means that we get the oversight by the inspector-general, and that is specifically in the bill. In that way we can be sure that not only is there a robust regime for an authorisation, so it is not just done as a matter of practice, but it has to be properly justified and authorised. But there is a system for oversight as well.

Although it is rather fun to talk about this on the one hand, it is very serious. I did want to add my commendation as well for the work of the select committee, which did take it seriously and has made a very good job of making sure we have got robust authorisations and a good system of oversight, as a check and balance against the sort of humiliation that results from situations where assumed identities are used.

I am also very happy with this part of the bill. All the subparts of it, whether it is individuals or corporates assuming identities, are all very well covered. New Zealand First is very pleased and happy with this part of the bill.

Although there has been some mirth around the images of spies in trench coats and dark hats and the escapades of some of our colleagues with assumed identities, obviously the use of assumed identities by our intelligence and security agencies is necessary. But if you look at some of the submissions made at the select committee, it is also the aspect of their work that does create probably the most nervousness—not the most nervousness, but a great degree of nervousness—particularly amongst civil society organisations.

I note that the Council of Trade Unions expressed its concern about the expansion of the powers of the intelligence and security agencies in respect of the creation of false identities. I suppose that comes from a bit of history of people using false identities to infiltrate legitimate political organisations, such as the Council of Trade Unions. I see another submitter, the Environment and Conservation Organisations of New Zealand—actually on this side of the Chamber, those of us who were not on the committee are trying to figure it out. We are assuming that it is an environmental or conservation group, although it may be another organisation using an assumed identity—it is hard to tell!

Those environmental organisations, political organisations—I think back to the anti-apartheid movement where security intelligence officers, using assumed identities, did infiltrate those organisations. It is understandable that there is a hangover from those days, of concern about the way in which those assumed identities are used. That is why it is pleasing to see that the recommendation that was made to establish a register, which the Minister is able to have access to, is one check on the use of people with assumed identities.

I do have one question for the Minister or for members who were on the committee who might be able to clarify this for me. It is in relation to the definition of employee. I note that the definition of employee in Part 3, Subpart 1, is different from the definition of employee in other parts of this legislation. In particular, I note that an employee means any person who is or will be an employee of an intelligence and security agency. I assume that means that a person who is not currently an employee of an intelligence and security agency can be approved to have an assumed identity.

I am not quite sure why it is necessary for someone who is not currently employed as a security and intelligence operative to be able to have an assumed identity. There may be some operational purpose to this, but I would have thought that in the event that an operation was being planned, the normal protocol would be to employ someone and then go through the process of approving them to have an assumed identity. Again, as I said the last time I made a contribution, I am approaching this as a layperson—somebody who does not have any particular expertise in this area and who was not on the Foreign Affairs, Defence and Trade Committee—but it would be helpful if the Minister in the chair, Chris Finlayson, was able to explain to the Committee why that pre-emptive ability to create an assumed identity, and to approve someone to use an assumed identity when they are not yet an employee, is allowed for in the legislation.

The previous speaker, Iain Lees-Galloway, raised a very good point about the term “will be an employee”, and I should simply say that sometimes the actual cover is created and it may be used over a number of years, so when the cover is created, a person, for example, may not be an employee, but may be for the operation some years later. So that is why we have the belt and braces “is, or will be”, because at the relevant time of creation of the cover, the person may not be an employee. So it is simply to cover off that exigency. Can I simply say there is a broader question that I omitted to mention, but we will come to it in Part 7, and that is in relation to assumed identities.

One other matter that I should have referred honourable members to is in clause 165(b), simply to say that ministerial policy statements are able to be issued, quite apart from warrants, and so on. Part 7 deals with—

💬 Hon Ruth Dyson: I’m sorry. What clause did you say?

I am sorry—clause 165. It deals with ministerial policy statements. Just to emphasise that, quite apart from what is in the statute, a ministerial policy statement can be issued dealing with the detail of “acquiring, using, and maintaining an assumed identity”, or “creating and maintaining a legal identity”—that is clause 165(c). So, in due course, the responsible Minister will be producing policy statements that will provide for the detail of the matter.

If I am to use my spy name, using the Grant Robertson formula, I would be Glen Leonard.

💬 Grant Robertson: That’s original.

Yes, that is original. This part, of course, deals with what everyone thinks of when we talk about spies: the whole undercover agent, undercover cop - type scenario. It reminds me of one of my favourite TV shows as I was growing up, with good old Maxwell Smart as Agent 86. I remember the time he was a bit distressed by the fact that his girlfriend, Agent 99, was paying too much attention to Agent 43, and she pacified him by saying: “Don’t worry, 86, you’re worth two 43s”.

💬 Hon Members: Ugh!

I did not write it. When we look at undercover agents, undercover spies, whatever you want to call them, their purpose would be to do things such as—I assume—infiltrate gangs, drug syndicates, and other organised crime. I think it is clause 34 where—sorry, just to go back, those people who would have to infiltrate organised crime or gangs or drug syndicates may, in the course of their duties, actually have to commit crimes themselves. Just to, say, fit into a gang, they may have to partake of drugs or—who knows what they may have to do.

Clause 34 is about the immunity of authorised persons. I think that is the correct wording: “Immunity of authorised persons”. It says: “An authorised person is protected from civil and criminal liability, however it may arise, for any act that the authorised person does, or omits to do, in good faith and with reasonable care—(a) in the course of acquiring, using, or maintaining an assumed identity in accordance with an authorisation given under section 26;”. I am just wondering: is that total immunity? How far could an undercover person actually go in order to do whatever they have to do under an assumed identity?

I have also heard stories about people who have, say, spent a lot of time undercover in gangs and in drug syndicates, and actually become immersed in that lifestyle. They actually have a lot of harm and psychological issues because of that lifestyle, over a number of years. I guess this is not a question or anything; it is really just a plea that anybody who does go undercover, in-depth, for a lengthy amount of time in those organisations—what sort of help and support do they actually get when they have to come out of undercover? We have heard of people suffering mental health issues, addiction to drugs, and, basically, being ignored by the agencies that once employed them. So, really, this is just a plea that those people who put their lives in jeopardy, who put their lives on the line when they go undercover and when they actually become immersed in whatever culture they are trying to break—that at some stage, when they come out of that, they have the support that they need to step back from that lifestyle, to step back from whatever, and, basically, get the counselling and the support to get over the experiences that they have had.

That is just a small contribution in terms of the immunity of those authorised persons and concern for their care.

I am grateful to Mr Davis for raising those points, and I was listening; I was just trying to work out what my assumed name would be according to the Pretoria formulation. It would be Francis Lohia , so I do not think that would work at all well. But, anyway, back to serious stuff.

The honourable member Mr Davis raised the issue of the immunity under clause 34. Can I emphasise that that immunity goes to someone who is “protected from civil and criminal liability” for any act that is done “in the course of acquiring, using, or maintaining an assumed identity”. But I want to emphasise to the member that any particular act by a person, be it under an assumed identity or not, has to be the subject of a warrant. So there are two parts to it, and what we are focusing on in clause 34 is the immunity that comes when someone is in the course of acquiring—what is it—using, or maintaining an assumed identity.

I move, That the question be now put.

I just want that to be clarified. So immunity in the course of acquiring but then using the assumed identity; surely, Minister, that would mean that in the course of using that identity, going about undercover—“How far does it go?” is the question. I would just like that point clarified, sorry.

Can I just use this example. This relates to, as I said, a person “in the course of acquiring, using, or maintaining …”. The activity that that person may undertake under an assumed identity—breaking and entering, or whatever—would still have to be the subject of a warrant. Does that clarify the matter?

The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 3 be agreed to.

Amendments agreed to.

Part 3 as amended agreed to.

Part 4 Authorisations