Intelligence and Security Bill

I did not think anyone would allow this part to go through on a nod, because it is a very important part and it is at the heart of the legislation. It is only fair for members of the Committee if I say a few words, and then I expect that there will be quite a lot of discussion.

The first point relates to the authorising Minister. I recall Mr Little raising, in his first reading speech, the appropriateness of the relevant Minister for warranting purposes being the Attorney-General—which is what the reviewers had proposed—or whether it should be the Ministers in charge of the agencies. That got me thinking. I think it got the Foreign Affairs, Defence and Trade Committee thinking, and the conclusion of the select committee, as a result of hearing those kinds of arguments, and, also, having heard from the inspector-general, was that the Attorney-General should not be the person who does the authorising, but it should be the Commissioner of Security Warrants and the Minister in charge of the agency. Having reflected on it, I totally agree with the select committee and think I was wrong to have moved on the reviewers’ recommendation.

One of the reasons I say that is that it is the Minister responsible for the agency who issues the ministerial policy statements, so I would have thought it was very important for that Minister also to be involved in, if you like, the everyday activity of a Minister responsible for the agency—namely, dealing with warrants. In any event, the Attorney-General should be remote from a lot of the warranting stuff. The Attorney-General’s concern is to stand back and make sure the business of Government is conducted in accordance with the rule of law, and should not really be at the coal-face on this sort of matter. So I am very happy to accept that recommendation and think it is absolutely correct.

Can I say something about Part 4—which I have already been talking about. It contains the authorisation regime and it provides lawful authority—the very thing that the Committee has been talking about off and on throughout the afternoon and the evening—for the carrying out of otherwise unlawful activities, and it confers on the agencies the power to give effect to authorisations granted under this part.

There are a number of changes to Part 4 that the select committee has made, and we accept all of them. I think these have provided for the opportunity to reorganise Part 4 to make it much clearer what the nature is of the powers conferred on the agencies and the circumstances in which they apply. It is interesting to note that the committee went through all classes of warrants, and some unnecessary powers have been removed or limited.

Let me give the Committee an example of where the select committee, I think, has done really good work. The bill, as introduced, provided for purpose-based warrants, and this would have enabled the issue of a warrant, without any need to specify the persons, in respect of whom, or the places at which activities would be carried out. The committee has recommended the removal of purpose-based warrants, on the basis that class-based warrants are available under the intelligence warrant regime, and will meet the operational needs of the agencies while still requiring greater specificity than purpose-based warrants would have. I agree with that, and I think that that is going to encourage much better oversight—and more effective oversight—of activities.

The second point I want to make concerns the enhanced protections in the warranting system—for example, in clauses 53 and 57. In clause 53 there is this requirement of due particularity in warrant applications. So an application for an intelligence warrant has to be in writing, obviously, amongst other things, and must “set out detail of the activity proposed to be carried out under the warrant;” and “set out the grounds on which the application is made (including the reasons why the legal requirements” have been met. That is an example of the specificity that is required in the warranting system. Secondly, I refer members to clause 57, dealing with the “Additional criteria for issue of intelligence warrant”. A new criterion has been added to the matters that the Minister and, in the case of a type 1 warrant, the Commissioner of Intelligence Warrants must be satisfied of before issuing a warrant—clause 57(d)(ii): “all reasonably practicable steps will be taken to minimise the impact of the proposed activity on [any] members of the public;”.

I then refer honourable members to clause 67, in which the protections for privilege now cover—you can see the underlined phrase—privileged information as well as privileged communications, and provide protection for settlement negotiations and mediations, as recognised in the Evidence Act 2006.

Can I just then refer to the rewording of certain key provisions in the warranting regime, so as to better reflect the purpose and the nature of the activity being authorised. The removal of the training and testing warrants from the intelligence warrant regime—in, I think, Subpart 1 of Part 4—has enabled some wording changes to key provisions so that the language used better reflects the nature and the purpose of proposed activities.

Type 1 warrants now authorise otherwise unlawful activity “for the purpose of collecting information about, or to do any other thing directly in relation to—(a) any person who is—(i) a New Zealand citizen; or (ii) a permanent resident …”. As we know, type 2 warrants authorise the carrying out of otherwise unlawful activity for the purpose of collecting information or to do any other thing in circumstances where a type 1 warrant is not required. The language that I have just quoted of doing “any other thing directly in relation to,—” is intended primarily to cover GCSB cyber-protection activities where the person is not collecting information about the New Zealand person, but doing so is the inevitable result.

The third point I want to make concerns the creation of stand-alone regimes for each different category of warrant. Training and testing activities were provided for in the bill at introduction as a purpose for which an intelligence warrant could be obtained. This led to difficulties in framing and drafting some of the warranting provisions in order to accommodate these purposes. A number of submitters were also concerned about the scope of these new types of training and testing warrants. Accordingly, training and testing activities are now separately dealt with in a stand-alone regime in Subpart 3A of Part 4, and they are the warrants that are called “practice warrants”.

As part of the separation of practice warrants from the intelligence warrants regime, the safeguards from the intelligence warrants regime have been replicated, but it is important to note that some additional ones have been added. All practice warrants are subject to the triple-lock, regardless of the nationality of those who may be affected by the activities, and there is mandatory reporting on the conduct of the activities under a practice warrant—reporting both to the Minister and to the inspector-general.

There are just a couple of other points I want to make about the further limiting of practice and removal warrants. It is important to note that the activities able to be exercised under a practice warrant have been constrained on the recommendation of the select committee. Human intelligence activities and the NZSIS’ power of entry are not available under a practice warrant.

Removal warrants have also been limited in their application. At introduction, the bill would have enabled the GCSB to obtain a removal warrant and give effect to it. This would have conferred a power of entry on the GCSB to retrieve devices. In contrast, the situation with intelligence warrants where the GCSB has an obligation to work with the SIS to access powers of entry, the select committee recommended removal warrants be limited to the SIS only. Where the GCSB requires removal of a device from private premises or property, the SIS will apply for a removal warrant and will carry out that removal on behalf of the GCSB.

There are a couple of terminology changes. The term “information” has been substituted for “intelligence” in a number of places in Part 4 and, as I said, I think Part 4 is now better organised. Can I simply refer, finally, to the—Mr Chair?

The CHAIRPERSON (Hon Trevor Mallard): Um—

I anticipated the bell.

The CHAIRPERSON (Hon Trevor Mallard): Yes. We will let the Minister run, no matter the normal two-call rule.

OK, thank you, Mr Chair. The only other point I was going to make related to the proposal about—this is in clause 47—raising the threshold for serious crime in type 1 warrants from any offence punishable by 2 or more years’ imprisonment to any offence punishable by 3 or more years. That change applies only in the context of type 1 warrants, not to serious crime in the context of incidentally obtained information. Mr Parker suggested that to me a few days ago. I have gone away and thought about it and am happy to go along with that.

Part 4 of this bill, to me, is actually the most important part of this bill. This is the part that confers but constrains the power of spy agencies to get warrants that affect New Zealanders and others. This is probably the most controversial part of the bill, and I want to talk a little about it.

There are some changes that have been made to the version that went to the Foreign Affairs, Defence and Trade Committee, which I will come to. But before I do that, there are, essentially, two types of categories of warrants that can be obtained against New Zealanders, both of which are constrained. The first is when New Zealanders are acting as the agent of a foreign power. This is found in clause 55B and applies when there are matters that are affecting international relations or the economic well-being of New Zealand. That is not enough. The person against whom a warrant is being sought has to be either acting or purporting to act on behalf of a foreign person, a foreign organisation, or a designated terrorist entity. That is not particularly new language. There are equivalents to that in the current legislation in relation to the agencies, and it will only apply when a New Zealander is acting as an agent of a foreign power.

We should be aware that a foreign organisation can include a foreign corporate. So if there was a multinational acting in New Zealand, there is the potential for that to apply here. It would be a foreign organisation in terms of this bill and if a New Zealander was working for that organisation and it was something that was a matter relating to international relations and the well-being of New Zealand or the economic well-being of New Zealand, then it could apply for a warrant against a New Zealander.

The more important, if I could say it that way, part of the powers against a New Zealander lies in clause 55A. This has as a precondition that the matter has to be necessary to contribute to the protection of national security and fall within a series of alternatives, like terrorism or espionage. I want to explain the evolution of that at select committee. The original form of the way in which this was cast in the bill that went to the select committee was as recommended by the Cullen-Reddy report, but officials had identified that that might not be the best approach even at the time it was referred to the select committee, and had said to submitters and others to perhaps consider another approach.

At select committee we learnt that the problem with the approach, which attempted to define national security, was that there were things that were covered, and you could get warrants for them, that ought not to have been covered and things that the agencies needed warrants for were not covered and they could not get warrants for them. So it served neither to protect the public appropriately nor to empower the agencies appropriately. So the advice from officials, which the select committee tested very thoroughly, including by talking to the Privacy Commissioner, the Inspector-General of Intelligence and Security, and various other submitters, was to move to a new definition, which in some ways is modelled on the approach that is taken in other jurisdictions.

For example, the United Kingdom does not try to define national security and get themselves into that sort of straitjacket. It takes an approach where the term “national security” is left undefined, which is what we have now gone for in this rendition of the bill, as it has come back from the select committee. But we have the additional protection that in order for you to get a type 1 warrant against New Zealanders, it not only has to contribute to the protection of national security, it has to enable the assessment or protection against the harms that are set out in clause 55A(2). I am going to run through those, because they are all very high-level thresholds.

The first is terrorism or violent extremism. I accept that if there is a threat to New Zealand involving terrorism or violent extremism it is appropriate that our GCSB and SIS agencies have the power to get a warrant against a New Zealander, if it relates to national security and it relates to terrorism or violent extremism.

The second alternative is if it relates to espionage or other foreign intelligence activity that is directed at New Zealand interests, that is carried out by a person who is a New Zealand citizen or permanent resident, and that occurs in New Zealand. Again, that is quite a high-level test, because it has got to be a matter of national security and espionage or other foreign intelligence activity of the type that I have just covered.

The third example is national security and sabotage within the meaning of section 79 of the Crimes Act. So if someone was going to plant an explosive device to blow up a dam or cause some disturbance, I think that is serious enough for our agencies, if it is a matter of national security, to have some powers to get a warrant—similarly, for the proliferation of weapons of mass destruction.

Then the last one is anything that may relate to a serious crime, and I am going to come back to the definition of what is serious enough to really be a serious crime. It has to be a matter of national security and a serious crime that originates outside New Zealand or is influenced from outside New Zealand. So in that case, if it involves some international drug syndicate or people-smugglers or something like that, or it involves the movement of money, goods, or people—actually, I probably should have mentioned people-smugglers in the second alternative—or if it has the potential to damage New Zealand’s international relations or economic well-being, then it can fit within that area.

The concept of economic well-being being used in respect of a warrant against a New Zealander has to be prescribed. This was one of the points that was made very clearly by Cullen and Reddy. Otherwise, if you have a wide definition of economic well-being, anything would go, because you could virtually say that anything relates to economic well-being. But for that to apply here, it has, firstly, got to be a matter of national security and, secondly, it has got to be a serious crime, as well as having the potential to damage New Zealand’s international relations or economic well-being. I think that is fair enough, so long as the threshold in respect of serious crime is high enough.

The threshold in the bill, as it came to select committee, and, indeed, as it left select committee, is a maximum term of imprisonment of 2 years, which I do not think is actually a proper definition of serious crime. I note that the definition in the search and surveillance legislation that came through this House actually has as a threshold 5 years. I would have preferred a 5-year definition. The Prime Minister and the officials came to us and said “Well, there are these series of crimes, including crimes that could have an international dimension, that ought to be caught that have less than 5 years of maximum imprisonment, but should none the less be caught.”, and the Prime Minister then offered a compromise of 3 years, which the Labour Party is willing to accept because it is better than 2 years. We would have preferred 5 years. We cannot get the 5 years because the Government is not willing to agree to it. It is a matter of important detail but, none the less, it is not going to mean that we vote against the whole of the bill, and so we are willing to accept a compromise of 3 years.

For that reason, the Prime Minister has put forward in Supplementary Order Paper 269 an amendment to the definition of “serious crime” to change the provision—and the Minister in the chair, Chris Finlayson, will tell me if I have got this wrong, whether it is the Prime Minister’s Supplementary Order Paper or another one. I think it is the Prime Minister’s Supplementary Order Paper—that is the agreement we had—and it will change it from 2 years to 3 years. On that basis, I think that we get the limited circumstance in which these things can be used against a New Zealander’s right.

How is this an improvement on the status quo? We know from debates in respect of the GCSB that right at the end, on the final reading of that bill, the then Prime Minister was reluctantly—I have to say—forced to accept that, under the GCSB legislation that was passed as an interim measure following the Dotcom fiasco, there was the ability to spy on New Zealanders in a rather unconstrained way. The Prime Minister said “Don’t worry about that; I won’t operationalise it.”

That was better than nothing, but you are actually better to have these things appropriately prescribed by legislation rather than left to the will of a Minister as to whether they will inappropriately use the powers that have been granted by Parliament. We know that is not the right way to do it. We should have these rights constrained, and I think that with these amendments, as recommended by the select committee, we get to that point and, accordingly, I am in favour of Part 4 of the bill.

It is my intention to call Dr Kennedy Graham, but, before I do, I do want to inform him, so that he is not under a misapprehension and so that the Committee is not, that when we come to the vote on his Supplementary Order Paper 268—if, in fact, the Committee has agreed, as is my expectation, to the Minister’s Supplementary Order Paper 269—his amendment to clause 47 will at that point be out of order. Therefore, it is my intention to split his two amendments to this part—not to put the amendment to clause 47, but to put the amendment to clause 92. I am, of course, anticipating what the Committee might do, but I thought it was better to warn the member now rather than have a fuss later on.

Thank you, Mr Chairman, very much for that explanation. Of course we respect that and operate on the same presumption. But just by way of passing preface, with respect to what the Hon David Parker was saying—and he gave a very lucid explanation of the reasoning process by which the Committee seems to be coming to that view—and with respect to the Minister for his very able treatment of this whole issue, not least the bill itself, none the less we in the Green Party felt obliged in not having participated in the intimacy of first past the post. We felt obliged to put forward what we had always embraced, which was a view that 5 years was the natural limit, but we will just accept whatever fate hands to us. So thank you again.

I just move to clause 92, which is covered in our Supplementary Order Paper 268. It pertains to the appointment of three persons as Commissioners of Intelligence Warrants in subclause (1) and the appointment of one Commissioner of Intelligence Warrants as the Chief Commissioner in subclause (2). We would simply replace the words “Prime Minister” with the words “Intelligence and Security Committee”. The reason for that proposal is intended to provide further transparency and oversight of the key positions in the new framework, particularly the Commissioners of Intelligence Warrants.

I will not elaborate on the point. I think colleagues will understand where we are coming from on this. It does pertain to the whole composition of the Intelligence and Security Committee, which will become subject to debate a bit further down the track, so I will not presume that debate; I will just put forward the proposed amendment. Thank you.

I have got just one question around Part 4 for the Minister in the chair, and that goes to clause 47, “Interpretation”. It is page 50, for the Minister’s benefit, and it has a definition of “private premises”, which “means a private residence, a marae, or any other premises to which members of the public do not frequently have access”. My question to the Minister is as to why there is specificity about a marae. There are three categories there: a private residence, which could mean a number of things; a marae, which can mean only one thing; and “any other premises to which members of the public do not frequently have access”, which means pretty much everything else. I think my Māori caucus members will have some questions about this—as to why there is this specificity about marae.

I had a think about this when I first had a read, and maybe the definition offers some protection to a marae, but from what I am reading, it does not. It singles it out specifically as a place that is different from a private residence and any other premises to which members of the public do not frequently have access. I think some of my Māori caucus members may actually dispute whether or not a marae is, in fact, private premises, because of the kaupapa of a marae. As to why a place of worship may not be included within the definition of “private premises”—or sports clubs or any other organisation that may have a well-known base or centre or physical building—why has that place not been specified under “private premises”?

I bring that up—and I think other colleagues might be better qualified and will probably take a call—in the context of what happened around the Urewera raids, and the damage that they had on the communities and the relationship between the police and those communities, which were centred on Māori communities. I cannot find a reason as to why there is a generic definition of “private residence” and “premises to which members of the public do not have frequently have access”, and a marae, of all things, is singled out. I think there would be quite a lot of people in our Māori communities, and those who are in and around communities where the marae is a centre of that community, who will want to know why they have been singled out. I have asked my colleague David Parker, who is on the Foreign Affairs, Defence and Trade Committee, as to why that is the case; he does not know. I think it is a fair enough question, as to why marae are singled out.

It is a sensitive issue because marae are sacred. They carry a lot of mana in the community in terms of what happens there and the people who are in and around them. If we are singling them out as private premises and if that interpretation of private premises gives them a different status from other buildings or other centres in the community, I think those communities deserve to know why. I am open to it being for a protection reason, and I have tried—and maybe I have not got there yet—to find whether or not it gives them a special status that protects them a little more, but I cannot seem to find that. I think, given the context of what has happened in the past—and even without that context—I say to the Minister that it seems very odd to me as to why “private premises” can mean a private residence, other premises to which members of the public do not frequently have access, and a marae. I think that is a fair enough question for the public to get an answer to.

I follow on from what my colleague Kris Faafoi has mentioned. First of all, a marae, in my opinion, is not a private premises. It is, in fact, very public. It is a place where Māori have funerals, birthdays, church services, weddings—basically, they are open throughout the whole—

💬 Meka Whaitiri: Campaign launches.

—yes, campaign launches. They are open basically throughout the day and accessible 24/7, in general. So I disagree (a) that they are private premises but also (b) that they are premises to which members of the public do not usually or frequently have access. I mean, a marae can be used every day of the week, and if we are having tangis one after another—which is, sadly, often the case—then maraes are open all the time. Quite possibly every weekend there is something going on at a marae. As Kris Faafoi has said, just around why a marae has been singled out, it is almost implying that Māori are more dangerous than other members of the public. I do not know why churches have not been included in there, or community halls, or the Freemason halls, or the croquet clubs, or the bowls clubs, or any other sports clubs—bridge clubs.

I am slightly annoyed that it is there. I do not know whether it has to be there. But certainly, probably all New Zealanders need to understand that marae are public places and anybody can hire a marae, regardless of their ethnicity. You go there on the basis of knowing that a marae has certain values and kaupapa and tikanga—“rules” is basically the word—to obey, but they are public premises, not private premises. They are there for all members of the community. They are open frequently. To me, it is something that does not necessarily need to be there and it does conjure thoughts of the Urewera raids. The surveillance is going on there up there in the bush, I believe, although I do not know the full details around the whole circumstances. Given the fact that it does not really need to be there, I would hate for Māori to stand up and say: “This is a racist piece of legislation.”, when the reality is that we do need this, and that is why the Labour Party supports the legislation.

Just one other thing—and I guess this is what happens when you are not part of a select committee and you come into the House and pick it up and just go through it part by part. I understand now what the Minister was referring to in terms of warrants when I was asking about something in Part 3. This explains it really carefully and really clearly. I have to say that my concerns about Part 3 have been appeased by reading Part 4. I guess I need to start reading Part 5 so I do not ask irrelevant questions this time around.

I would like to look at some of the definitions in the interpretation clause in Part 4, which actually attracted quite a lot of comment from submitters. I would like to start with the definition of “private communication” because this did attract some discussion from submitters.

The definition of “private communication—(a) means a communication … made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication;”—a private conversation that is made between two or more people, and there is no expectation that that comment is public. An example would be a couple of staff in an MP’s electorate office who are having a private conversation, maybe about matters in their workplace, and should the member of Parliament covertly record those staff members, that would certainly be the recording of a private communication, which, unless you were an employee of the Security Intelligence Service and had a warrant to do so, would be illegal.

That is a private communication, as opposed to what is defined under paragraph (b), which states: “does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person”, such as if you are at a public meeting with journalists and members of the public. For instance, when I decided to record the Deputy Prime Minister, now the Prime Minister, when he said that a lot of young New Zealanders were pretty damn hopeless and they were all on drugs, that was not a private communication as defined in the interpretation clause of this legislation. Therefore, I did not need a warrant to record that, because it was quite clear that the then Deputy Prime Minister was in a forum in which those comments—

The CHAIRPERSON (Hon Trevor Mallard): I am going to ask the member to come back to the bill. There is quite a lot in the bill, and I think it would be quite good if the member talked about what was in the bill rather than other things that are not.

I use those two examples just to point out the difference between a private communication and a non-private communication and the circumstances where a warrant is required and where a warrant is not required.

There was a lot of comment made about the definition of “private communication”. In fact, some submitters said it was flawed. Some submitters even said that we need not have a definition of “private communication”, because, in the view of some submitters, all communication should require a warrant in order to be recorded. It just would not work to require all forms of communication to require a warrant. I think it is quite legitimate to expect a person who is making statements or is communicating in a public forum to expect that to be recorded.

Some submitters suggested that the Canadian definition would be clearer. However, I believe that the committee came to the view that the definition of “private communication” included in Part 4 of the New Zealand Intelligence and Security Bill was actually the same definition of “private communication” that is used in other legislation, and it is helpful to the public and to all of us to have consistency in the definition of “private communication” when it comes to the question of who is able to record private communications and what warrants or other authorisation one might need in order to be able to record private communications.

There were other comments made about other matters defined in the legislation. InternetNZ asked that there be an explicit reference to metadata and that metadata be separated from other forms of communication. Again, I think the committee came to the conclusion, quite rightly, that a lot can be gleaned from metadata. We can actually discover a lot about a person’s activities.

I want to raise again the issue of the definition of “serious crime” and why we have various attempts to define it and change it. Quite frankly, New Zealand First is quite happy with the bill as it is, with the 2-year term of imprisonment applying, and now we see, for no apparent reason, that the Government is supporting 3 years. I did not hear from the Minister in the chair, Chris Finlayson, any real argument about why that should be—and another party is promoting 5 years. The reason I am saying this is that I do not see how it assists the operation of the bill, simply by trying to raise the threshold in terms of the period of imprisonment, which, presumably, is a way of defining how serious a crime has to be. It is a pretty rough and ready way of doing it. I would prefer to err on the side of a lower period of imprisonment, which is the 2-year period, for the purposes of the definition in clause 47.

I also want to point out that when we see this term actually used in the bill, the most important place it is used is in clause 55A, which is probably the most important clause of the bill anyway. You see that clause 55A(2)(e) says that “anything that may be relevant to serious crime and that—(i) originates from outside New Zealand or is influenced from outside New Zealand; or (ii) involves the movement of money, goods, or people—(A) within a country outside New Zealand; or (B) from a country outside New Zealand to New Zealand or to any other country; or (iii) has potential to damage New Zealand’s international relations or economic well-being:”. The term of imprisonment is not there in isolation by itself; it is used in a context like that, and that is the most important context that it is in. For me, that is perfectly satisfactory.

There is nothing to be gained, in my view, by increasing the length of the term of imprisonment as a pretty rough way of trying to indicate how serious a crime must be. I have not heard from any party in relation to the Supplementary Order Papers (SOPs) they have put in, or from the Minister, about why there should be any change from 2 years. Perhaps the Minister would like to comment on that, because, as it stands at the moment, I am inclined to vote for the bill as it is and not for the SOPs that change that period.

I also wanted to comment on something else in relation to clause 47, and that is the absence, really—actually, it is clause 55A I meant to refer to—of a comprehensive definition of “national security”. I am happy with that. I am happy with that because if you look at that clause, clause 55A, you will see, for example, in clause 55A(1)(a), relating to type 1 intelligence warrants, that there is a necessity test for the contribution to the protection of national security and that the warrant “(ii) identifies, enables the assessment of, or protects against any of the harms specified in subsection (2);”—and David Parker read those out. In that context, there is actually no point whatever in trying to attempt any definition of “national security”.

I disagree with my friend Kennedy Graham, who talked a lot about clause 11, which is only the object clause, and nothing turns on that whatsoever. In terms of legal liabilities, it is these clauses that are relevant, not the object clause—nothing turns on that at all. In fact, you could leave that clause out and it would not make an iota of difference to the bill. But I am happy that it is there because I do like to see purpose clauses in bills. Beyond that, it is not really a very important part of the bill—clause 55A is. Again, those terms are used there—and terms like “economic well-being” are used there—but they are in a context, and that is the point I am making.

The point I am making is that you have to read the whole piece of legislation. You cannot just pick on a few words and say: “What does ‘economic well-being’ mean?”. If you look at this part, especially—because this is the really important part of the bill, and especially clause 55A—if you look at it as a whole, you will see what the context is, and there is no need to attempt elegant definitions of terms. There is just no need for it, because the terms and conditions upon which a type 1 warrant would be issued are clearly spelt out. Anyone can understand what is required under that clause for the issue of a warrant for type 1 intelligence against New Zealand citizens.

I will finish with this: I just want to hear why the Minister thinks it is so important to change from 2 years to 3 years, as the Government is proposing now in relation to the definition in clause 47. I would like him to think about what I have said—that there is no advantage in doing that; that the balance of advantage, in my view, is in keeping the years of imprisonment reasonably low. Down to 2 years, for me, is satisfactory. I do not see any point in considering anything else and I have not heard any good argument for doing so, unless the Minister has got one, which I am willing to listen to.

That was a very fair question by Mr O’Rourke. I suppose, at the end of the day, I interrogated the various categories of offence. There is a degree of arbitrariness about it—2, years, 3 years. Five years seemed to me to be too high, but I was willing to move from 2 years to 3 years on the basis of the other considerations in the clause the honourable member has been referring to, and was satisfied that not too much change would occur as a result. But that is the reason I have given, whether it is an adequate reason, whether it is an arbitrary reason, or whether I am just too keen to compromise, the member can make his own judgments.

Can I come to the very interesting point raised by Mr Faafoi about “private premises means a private residence, a marae, or any other premises to which members of the public do not frequently have access”. Mr Davis also raised a couple of points on it and I found out where the term “private premises” is actually referred to in this part and that is in the definition of “visual surveillance”, in clause 47, which states: “visual surveillance means the observation of private activity in private premises,”. The definition is largely drawn on the definition of “private premises” in the Search and Surveillance Act 2012, which is very, very similar. “Private premises” in that Act is defined as meaning “a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises”.

The rationale behind putting “a marae” in there is to make sure if a surveillance warrant was sought under the Search and Surveillance Act in relation to a marae, you just could not go and plant a bug. If you were, say, the police or some other enforcement authority, you would need to get a warrant, and that is carried over here. So, actually, it is designed to protect a marae rather than diminish the protections for it. I heard what the honourable member said about a marae. I guess one is saying, yes, at times it is open to the public, as are most churches, for example, whether or not people want to avail themselves of that opportunity. But marae are also used for sleepovers, for private activities, and matters such as that, and it was felt that the protections that are ordinarily provided to dwellinghouses should also be made available to marae. I think that is the rationale underpinning the definition in the Search and Surveillance Act 2012, and a similar sort of rationale is considered appropriate here given the intrusive nature of what the SIS can do, and if any activity is to involve a marae a warrant would be required.

And I thank the Minister in the chair, Christopher Finlayson, for his explanation of that. Just to follow through so that on this side of the Chamber we get absolutely clear about what is being protected here, I have done the same search that the Minister and his officials have done to find out where “private premises” actually occurs in the bill, and as the Minister says, it occurs under the definition of “visual surveillance”. If you follow that through—and it might have been helpful had that clause said what the next clause says, which is that a “visual surveillance device has the meaning given to it by section 3(1) of the Search and Surveillance Act 2012.” If it had actually said that about the definition of “visual surveillance”, that might have been a little helpful.

But if you follow that through—and I have not exhaustively searched this bit—when you get into the powers of the SIS acting under an intelligence warrant—clause 65, which is also in Part 4 of the bill—we then run through, effectively, all of the things that the security agency can do. It can enter places and vehicles; it can install, use, or maintain various devices; it can access things; it can take photographs; it can open vehicles—this is the bit, incidentally, that slightly makes my blood run cold when it comes to the activities of the agencies, because this is where the rubber hits the road about the intrusive nature of the powers that we are granting here.

We have talked previously in earlier parts about the need for balance, because we do need powers like this, but this is where it really is laid out, in clause 65. One of those things, if we just take the example of 65(1)(b), is to “install, use, maintain, or remove—(i) a visual surveillance device …”. So that would apply in private premises, such as a marae. Although I can see the point the Minister is making, it is an enabling provision as well. It specifies a type of private premises where a type of surveillance will take place and then, in turn, how that surveillance would be undertaken. So I think I understand what the Minister was saying but I also think it works the other way, which is what causes the problem here—not so much that it is possible that a marae would be a place in which visual surveillance would be undertaken but that it is singled out as being so.

So I think that it is a slightly different issue than the one that the Minister is raising. I get what he is saying, but when you go back to “private premise” under the definition here, I really do not understand why it cannot just say: “Private premise means a private residence or any other premise to which members of the public do not frequently have access.” Just say that. That way there would not actually be the uncomfortable concern that I can completely understand that Kris Faafoi and Kelvin Davis have both raised—that, particularly in the shadow of the Urewera raids, this would be specifically mentioned.

I am never a great fan actually, as it happens, of phrases like “any other premises to which members of the public do not frequently have access”. I mean, that is the Eastern Suburbs Cricket Club and various other places such as that. A marae may sit as being both a public and a private place, but I would be extremely surprised if it is necessary to mention it. I do not think anyone on this side of the Chamber is accusing the Government of a particularly ill intent here; I just think that in the spirit of trying to build public confidence in these institutions, putting a word like “marae” into the middle of that sentence just starts to rekindle some of the very things that this legislation has sought—and mostly very successfully sought—to resolve in the New Zealand public’s mind.

As I say, I could be misinterpreting it, but I think when I read through it, it is in fact an enabling clause as well as, potentially, trying to make it consistent with the Search and Surveillance Act, and I do wonder whether officials might consider, in the time that we have available on Part 4 of this bill, whether or not just the deletion of the words “a marae” would actually have any effect whatsoever. I suspect it would not. I suspect other than it now being slightly inconsistent with the Search and Surveillance Act, actually, it would not prescribe the powers of the security and intelligence service and may actually help build some trust and faith in the institutions.

I wish to just raise a couple of issues in Part 4, and invite the Minister’s comment on them, looking first at clauses 55A and 55B. Clause 55A(1) describes the conditions under which a type 1 intelligence warrant may be issued to the director-general of an agency, if the authorising Minister and a Commissioner of Intelligence Warrants are satisfied that it is necessary to contribute to national security, protect national assets, etc. The Minister in the chair may wish to comment on the decision made by the Foreign Affairs, Defence and Trade Committee—especially as the Minister is the Attorney-General—to switch the ministerial requirement from that of the Attorney-General to that of the Minister in charge of the NZ Security Intelligence Service.

It may be that the same physical person might at some point hold both offices, but it is a definite shift of emphasis away from the judicial oversight role of the Attorney-General to the more operational oversight role of the Minister. The commentary to the bill makes the point that it is appropriate and useful for the Minister to be intimately acquainted with the workings of the organisations, and that the issuing of warrants is a core part of that. But, equally, the strengthening of judicial oversight, with which the Attorney-General might supplement the commissioner, would, I imagine, have been a finely balanced decision for the committee at the time. As the Minister in the chair is the Attorney-General, I would invite his reflection on that issue.

Secondly, as we move into clause 59, where we raise that issue about which Minister is responsible—interestingly, in clause 60A(1), on page 59, it says that “An intelligence warrant must specify a period not exceeding 12 months during which it is valid.”, and in clause 60A(2) that “The expiry of an intelligence warrant does not prevent a further application for an intelligence warrant in relation to the same activity.” A point there is that there is an extended period of time during which operations may continue pursuant to one activity, and that the renewal facility on the same issue means that it could be an even more extended period of time. I think it underlines to Labour members the seriousness of the warrant-issuing powers.

That brings us to, I think, a related issue. It is one that has been well traversed in the headline debates on the bill. As my colleague Grant Robertson said earlier, it is one of those things where the rubber meets the road. This bill, for the first time, codifies the issuing of warrantless surveillance and warrantless intercepts on New Zealand citizens. That is a serious Rubicon to be crossed, and it is a serious thing for this House, on a bipartisan basis, to approve. Members on this side have thought very carefully about whether to support the authorising legislation for that. It behoves me, I think, to underline that the balance is a fine one and that the protections set out in clauses 69 through 73 and on are extremely important to members of the Labour Opposition—that is, that the definition of an “urgent” or a “very urgent” warrant is tight; that the warrant will be revoked if not explicitly upheld within 48 hours in the context of an urgent warrant, or 24 hours in the context of a very urgent warrant; that all warrants must be notified and kept on a register; that the inspector-general must be notified immediately that such an urgent warrant is deemed to be issued; and that any material acquired through such a process must be immediately destroyed and/or returned in the event of revocation.

An on-balance judgment has been made, on a bipartisan basis, that in the circumstances which we face, this is an appropriate balance. But I would be remiss if I did not underline that for members on this side of the House, that is a very fine balance to have reached, and that we will be monitoring and will be interested to see how this evolves in the annual reporting of the inspector-general and the agencies. So I would invite the Minister to comment on the nature of those protections and on the switch from the Attorney-General to the departmental Minister.

I just want to briefly deal with a couple of matters. The first is that the issue of whether it should be the Attorney-General or the Minister was raised, I believe, in Mr Little’s first reading speech, when the bill had its first reading in the House, and then it went off to the Foreign Affairs, Defence and Trade Committee. The Inspector-General of Intelligence and Security raised a number of concerns about whether it should be the Attorney-General or whether it should be the Minister. I reflected on what Mr Little had said and on the submission of the inspector-general, and reached the conclusion that I thought they were right: that it should be the Minister who is involved in the day-to-day activities. As the member David Cunliffe correctly observes, the Attorney-General almost stands back and is concerned to see that the business of Government is conducted in accordance with the rule of law, which is an oversight function as a law officer, and the ability of an Attorney-General to do that is better preserved if he or she is not involved in the particular application. That is the rationale.

I hear what the member David Cunliffe said about that fine balance and the need for reporting, and, frankly, agree with him, so I do not think I have got too much more to add there. Simply to put the matter beyond doubt, because I think I have answered it, but maybe not very well, I go to clause 65, which sets out the powers of the SIS acting under an intelligence warrant, be it type 1 or type 2, and clause 66, “Powers of Government Security Communications Bureau under intelligence warrant”. Mr Robertson has referred honourable members to clause 65(1)(b), which is the installation of a visual surveillance device by the SIS. The parallel provision for the GCSB is 66(1)(b). Then one goes back to the definition of what a “visual surveillance device” is. As Mr Robertson said, that is picked up in the definition in clause 47, and “visual surveillance” is defined as meaning “observation of private activity in private premises”.

Then one goes to the definition of “private premises”. I can assure honourable members that, although I have no direct knowledge of why the word “marae” was included in the Search and Surveillance Act, it would have been, I surmise, to protect marae, so that if there were to be intrusive activity on a marae, it would not be regarded as a public place and a warrant under the Search and Surveillance Act 2012 would be required. The same principle applies here, whether it be for a type 1 or a type 2 warrant. Yes, a marae is a place where people can go in a public way for a number of the activities that Mr Davis correctly outlined, but it is not a place, necessarily, where people frequently go. The protections of the private premises or the private residence should be accorded to a marae, so that if someone wanted to take steps in relation to a marae, there would be a higher standard. That is the rationale behind it. Yes, it may seem, on the face of it, rather strange to include it, but that is the rationale behind it, and, I would say, a very good reason why it should be like that.

I have been really interested in the debate so far this evening on these amendments to the Intelligence and Security Bill. I want to speak particularly to the definition of “serious crime”. It has been referred to by a previous speaker, Denis O’Rourke, but I have a new question that I want to ask Minister Finlayson. Before I do, can I just say to the Minister that I really commend the way that he has engaged, and not just this afternoon and this evening. He is a competent Minister. He is respectful of people, he engages, and he does it with a modesty that is really admirable! That was my joke, Minister, that end bit. The first three parts were not a joke, though. I think that the competence and the engagement and the respect were not a joke, and I think they are really appreciated.

They are particularly important in a bill like this. It is quite a fundamental part of democracy, actually, where you have to balance what we are giving—through this authorisations regime, which is Part 4, which we are debating currently, we are giving the intelligence and security agencies powers, and part of the responsibility of that has to be to balance the protection of privacy and other rights of New Zealanders. Getting that balance right, I think, is best achieved if the positions that the Minister has adopted are undertaken, so that the debate is done in an open way, where questions are properly answered and people’s views are considered.

I also wanted to just ask the Minister, because I was not able to get a call on the earlier part, whether he thought that Francis Messines was a good “aka”.

💬 Hon Christopher Finlayson: Lohia.

No—you can answer me when you take your next call.

The CHAIRPERSON (Hon Trevor Mallard): No, no, no. You are allowed to.

I know, I know, but he obviously has not got that one. Unusually, he has missed the point of my comment.

Denis O’Rourke raised the issue about what the deal with “serious crime” was. Why would 3 years be any better than 2? Why was 5 years proposed? Why did we not just stick to 2? I think that is the question that I do not believe, in the same way that Denis O’Rourke mentioned, has been properly answered. The reference I heard from David Parker was that he thought that “serious crime” would link better with an imprisonment of 5 years, rather than 2 years. He thought 2 years would cover too much, and the Minister came back with a compromise of 3 years.

David Parker mentioned that the advice that they had received was that there would be offences that should be considered as serious crime that would be missed out if the length of imprisonment in the definition was 5 years. What I would like to ask the Minister—his officials will have to tell him, if they would not mind, because he is being distracted. I want to know the sorts of crimes that would not be covered and that the Minister thinks should be covered if the “serious crime” definition was set as “in relation to New Zealand, any offence punishable by 5 or more years’ imprisonment”. What are the sorts of crimes that are going to be missed out on? It does feel to me that 2 years may well cover a whole lot of things that we would not consider serious crime and that we do not want to have covered.

In relation to the other point that Denis O’Rourke made, which goes to 55A(2)(e), and, again, I would appreciate the Minister’s comments on this, I am not sure whether the “serious crime” that is referred to in that is in addition to the “serious crime” definition, because that is quite specific, talking about “in relation to New Zealand, any offence punishable by 2 or more years’ imprisonment”, whereas the 55A(2)(e) is quite specific about originating from outside New Zealand, or determined by another country. So I am not clear in my own mind about the relationship between those two parts and the consequential implications for the definition of serious crime. So, Minister, the question I asked is: what crimes would be missed if it was taken out to 5 years that, in the Minister’s view, should be included in the definition of serious crime? I think it is an important point, and if we can get that resolved then I think we will all leave the building tonight in a much happier state.

I think we have made a valuable contribution to security and intelligence services in New Zealand. After the general debate I was not feeling so cheerful about the behaviour of our Parliament, but I think after the debate this evening we can be pretty proud of the work we have done.

I move, That the question be now put.

Yes. I think we have had over an hour’s debate on this, and the Chairs have been deliberately encouraging of Ministers to answer questions reasonably when the questions are asked reasonably. We have had that, and I think it would be discouraging for the Government of that sort of procedure if, in fact, we took it for longer than it would have otherwise been taken for. So I will accept the closure motion.

As I explained earlier, as a result of that vote, I have ruled out the amendment to clause 47 as set out on Supplementary Order Paper 268 in Dr Kennedy Graham’s name.

The question was put that the amendment set out on Supplementary Order Paper 268 in the name of Dr Kennedy Graham to clause 92 be agreed to.