Intelligence and Security Bill

on behalf of the Minister for National Security and Intelligence: I move, That the Intelligence and Security Bill be now read a third time. This bill is the most significant reform of the legislation governing the intelligence agencies and their oversight, in our country’s history. At the centre of the reform is replacing four Acts with one comprehensive piece of legislation, which sets out more clearly than ever before the functions and the powers of the agencies, along with their oversight regime.

The bill is a response to the report of the first independent review of intelligence and security that was carried out by Dame Patsy Reddy and Sir Michael Cullen. I think that report was an exemplary piece of work, and I want to thank those two distinguished New Zealanders for their contribution. They laid a solid foundation for this reform, and the bill implements the vast majority of their recommendations.

I acknowledge the thorough work of the Foreign Affairs, Defence and Trade Committee, chaired initially by the now Hon Mark Mitchell and subsequently by Todd Muller. I thought the committee’s work was outstanding. We asked the committee to consider some very complex areas of the bill, including the approach to the definition of national security, which in turn plays a critical role in determining when the agencies can obtain a warrant to target New Zealanders. The committee did an excellent job on this matter and a wide range of other issues, such as narrowing the warranting regime and further strengthening the oversight of the bill.

I want also to acknowledge the many organisations and individuals who made submissions to the committee. In particular I want to thank the Privacy Commissioner and the Inspector-General of Intelligence and Security, both of whom made useful submissions to the committee and continued to work with officials throughout the process on a number of improvements to the bill.

Can I acknowledge the Bankers’ Association, Spark New Zealand, Vodafone New Zealand, and 2degrees. Their submissions and feedback resulted in changes to the bill relating to the disclosure of business records information. These changes mean greater transparency and oversight of the agencies’ access to this type of information. Other submitters, such as the Legislation Design and Advisory Committee’s external subcommittee, the New Zealand Law Society, InternetNZ, the Human Rights Commission, and the New Zealand Council of Trade Unions all made very useful submissions addressing a number of points in detail.

The current Commissioner of Security Warrants, Sir Bruce Robertson, also provided evidence to the select committee, and I thought that was particularly useful in terms of the warranting process and it informs some of the changes the committee recommended to warrant application provisions.

Can I particularly thank the officials who have worked on this bill—in particular, the national security policy team at the Department of the Prime Minister and Cabinet. That team has worked tirelessly. They have done a tremendous job, every step of the way. I also acknowledge the work of the Parliamentary Counsel Office. I am always saying we have some of the finest drafters in the world, and they have proved me right, once again, with this effort.

Finally, I want to acknowledge the members of this House who, I believe, have engaged constructively on this legislation, and that was evidenced by last week’s Committee of the whole House debate. As we said at the beginning of this reform, broad political support for the bill was crucial, given the national security implications. I am pleased this has been achieved, and I really do thank and commend all members who have engaged with the issues and the debate so productively.

One of the unfortunate aspects of politics in many countries these days is that politicians seem to yell at one another. Positions are taken and defended with great ferocity. Lines are never crossed. Compromise is a dirty word. [Interruption] Oh, they are yelling at me. Compromise is a dirty word. That is why I am so pleased that we, as New Zealand parliamentarians, avoided that dead-end with this bill. Of course there were important questions that were raised. Of course there were important points of principle that were taken. But I think the debate and the engagement was very constructive indeed.

The provisions relating to the Intelligence and Security Committee, which were robustly debated last week, were a good illustration of this. I emphasise what I said last week. Clause 193 of the bill contains the mandatory periodic review of the intelligence and security agencies and their legislation every 5 or so years, and this will provide us with an opportunity to ensure all provisions are working the way Parliament intended. If some members are disappointed with, for example, the size of the Intelligence and Security Committee, that is an issue that can be revisited at some later stage.

I particularly want to thank and acknowledge David Shearer, when he was a member of the Foreign Affairs, Defence and Trade Committee, for what I thought was a really helpful contribution. I want to thank my opposite number, the Hon David Parker, for his searching questions, for his ability to deal with some of these extremely difficult issues, and he did so always from a very principled basis. I want to thank Denis O’Rourke from the New Zealand First Party for the way he worked on this legislation in the select committee. During my meetings with him he was always so very productive and helpful.

I want to acknowledge Dr Kennedy Graham from the Green Party, who had a different view of matters but was very constructive, and with whom I always get on very well. I acknowledge his different world view, or the different world view of his party, but it was never acrimonious. It was always principled. Finally, I want to acknowledge the leaders of United Future, the ACT Party, and the Māori Party, who have given me considerable assistance and guidance throughout this exercise.

In closing can I say this. It is almost trite to say that with great power comes great responsibility. Our intelligence agencies have extensive powers, but they also have very serious responsibilities. They now have an explicit, coherent legal framework within which to operate and last year, through the Budget, received a significant funding boost to ensure that they have the necessary resources to remain effective in a rapidly evolving security environment. They have a crucial role to play in protecting our fellow citizens from modern-day evils like terrorism and cyber crime. I expect them to operate to the high standards that Parliament requires of them. I think I can say on behalf of all of us that there will be no excuses for failure or mediocre performance. I commend the bill to the House.

I rise to support the bill at its third reading and to acknowledge the work of the Minister, Christopher Finlayson, who has just spoken, for doing the spadework and also the effort that he has put in, in dealing with other parties, listening to their concerns openly and genuinely, and seeking to resolve the outstanding matters that each of the parties had brought to him. Like him, I want to acknowledge the foundation work that was done by Dame Patsy Reddy and Sir Michael Cullen, two eminent New Zealanders, as he described them, for doing an excellent report that laid the basis for the legislation. I think it was of great assistance to all MPs who have been working on the legislation and, indeed, to those who worked on it during the select committee process.

I also agree with the Minister—the Attorney-General, as well—that we are fortunate that at least here in this Parliament, there are matters upon which we can unite as members of this Parliament. It is important that national security is one of those. The Minister speaks, of course, as one who would never even think of passing off acerbic remarks about parliamentary colleagues.

💬 Grant Robertson: It’s never happened!

I cannot recall a time in which that might have happened, but it is right. Like him, I observed the debate in the Committee of the whole House last week and saw the quality of the debate. I have to say, too, that for a Minister sitting in the chair, unlike so many other occasions when Ministers contribute very little during that process, he was an active participant in it. He actively engaged in the debate, put up reasonable, sound, and often robust defences, but otherwise engaged with the debate that members were genuinely bringing on this very important piece of legislation.

As I said before, I think it is important that on matters of national security—and therefore the legislation covering those agencies that we charge with the responsibility of maintaining national security—there is, as best as possible, at least a unanimity of purpose and agreement about what the powers should be and that they are going to be resourced appropriately and effectively. I am happy to see this legislation in the form that it has now come back from the Committee of the whole House. I think it achieves the objective that was set by him as Minister, but he has sought agreement from other parties to align with.

We knew from the outset—from the Cullen-Reddy report and from the early draft of the legislation—that there were going to be more intrusive powers, especially for the GCSB, to cover off what had been seen as an omission from past legislation. But, equally, it was evident from the first draft of the bill—and I think the Minister had been very receptive in seeing these beefed up—and that is the safeguards that are provided citizens, at least of New Zealand, with regard to the exercise of those powers. Whether it is in relation to the new form of intelligence warrants and the way they are issued or whether it is access to personal information held by Government departments or, indeed, any agencies, private or public, it is clear to see that there are now safeguards in this legislation that were not present in previous legislation.

There were a small number of issues that I thought, and Labour thought, were outstanding as the first draft of the legislation came to the House. The first was a definition of national security. It is interesting to see that the bill in the form that it is now back in the House does not define national security, but it does refer to it. In that context, particularly clause 55A makes it clear what the bill, its powers, and the agencies are targeting when it comes to matters of national security. It is targeting issues of terrorism, forms of extremism, and threats to our economic security as well. I think that the way the bill is drafted, it leaves scope for interpretation but, equally, the context in which those words appear make it clear exactly what the purpose of the exercise of any powers under the bill is meant to be for. I think that will be an appropriate way for the agencies to conduct themselves and for those who are issuing warrants to be clear about the purpose of the work that they are doing.

A second issue that was of concern was the powers of access by the agencies to other information held by Government departments, in particular, but actually now under the bill as it stands, they are the holders of information about individuals who might be the target of investigations by the agencies. I think every New Zealander—every citizen—is entitled to be concerned about where the information that they provide agencies goes, how it is used, and who has access to it. I think the bill strikes a very fair balance in terms of allowing the security and intelligence agencies to request information—equally for Government departments to disclose information at their own initiative—provided there is a reasonable ground to believe that doing so is in the interests of national security and the objectives that each of the security agencies has.

The other issue that I had in relation to the bill when it first entered Parliament was the oversight by the Intelligence and Security Committee. I think one of the developments in the 2014 legislation was the quality of oversight given to the Inspector-General of Intelligence and Security. Certainly, the incumbent inspector-general, Cheryl Gwyn, has proven herself to be genuinely independent of the executive and of Government and has exercised her powers in a robust way, and in a way that is not necessarily flattering to Government but that is informative to the people of New Zealand, and that is what we expect from that office.

That is a vital piece of that oversight that we have of these agencies and of our intelligence and security architecture. It is encouraging to see also that the role of that office is respected and is added to in this bill so that there is a very close level of communication required between our security agencies and the inspector-general’s office. That is a good thing—that is to be encouraged, and I welcome it.

For the Intelligence and Security Committee itself, it is the political oversight of the agencies and it plays a vital role. No one has suggested that in the nature of our Parliament and our adaptation of the Westminster system the Government of the day should not have the majority on that committee—and I certainly accept that. But it is important in an MMP environment and in a Parliament that has multiple parties and multiple voices that, at least on the Opposition side, parties of some significance and substance that are represented in Parliament should be represented on that committee. There is greater scope and greater potential for that to happen under the bill as it appears in the House right now, so I welcome that. I personally thought that the committee should be bigger so that there was greater scope for better proportionality of representation of Opposition parties—

💬 Hon David Parker: As was the select committee.

—and indeed, the select committee supported that too, but that has not found its way into the bill following the Committee of the whole House process.

Nevertheless, the provision for the size of the committee and the appointment of the members to it at least allows a better chance now of better representation than was there before. So to that extent it is an improvement. I think the Minister is right. It is an issue now that we can schedule for further consideration in the next 5-year review of the legislation and the agency.

I just want to conclude again—echoing the comments of the Minister—by thanking not only the Foreign Affairs, Defence and Trade Committee but all MPs who participated in the debate and the scrutiny of the bill during the Committee of the whole House process. I think it was one of the better discussions that the Committee of the whole House has had over a piece of legislation, and I think the House can be satisfied that it has discharged its responsibilities to all citizens of New Zealand when faced with legislation that gives the State broad and sweeping powers, but also to ensure there are good checks and balances. The House did that, the legislation reflects that, and it has our support.

It is a pleasure to take a third call on the Intelligence and Security Bill. I was not sure whether I would get a call on the third reading so I made my acknowledgments during the second reading, but I would just like to very quickly acknowledge the Minister—our Attorney-General—who did set the tone very early on in terms of how the work would progress on this bill. Can I also just very quickly acknowledge our officials who supported the Committee.

We did narrow the warranting regime on the bill and we did strengthen the provisions of the bill, which I felt was very, very important. There was, of course, a real balancing between achieving greater transparency and checks and balances in relation to the legislation, whilst at the same time allowing the security agencies to do their very important work, and that is to actually protect our country and to be guardians of our national security. So I am very proud to see this legislation pass in this House, to have been involved in that process, and I am very happy to support the bill. Thank you.

Can I begin by thanking the Attorney-General for the process that he has run. I think it concerns a lot of people in Western democracies that we see faith in democratic institutions eroding, in part because we have got a very polarised form of politics developing in many parts of the Western world. We have seen it most obviously in the last year in the likes of the United Kingdom around Brexit and in the United Kingdom leading to the election of Trump.

💬 Tim Macindoe: The United States.

Yes, sorry, the United States—of course—in respect of President Trump. We are also seeing it in Australia, where the polarisation of its politics, particularly on the right wing over there, is quite concerning. [Interruption] Oh, it is. You have got Pauline Hanson; you have got people, after 46-degrees-Celsius summers, denying that they have got a problem with climate change; and suggestions that one of the wealthiest countries in the world cannot clean up its power systems. So we have actually got this threat to the public confidence in democratic institutions when the criticisms from politicians get over the top. The media, of course, likes a good controversial story, and so it amplifies the disagreements. People who do not follow these issues closely end up thinking: “Well, jeez, this system is broken. I don’t really have much faith in my democracy.”

As a parliamentarian, I think democracy is incredibly important. I think that the old saying that the only thing worse than a democracy is the alternative is a back-handed compliment to democracy and is about how wonderful democracy is.

Now, at times like this, democracy is called upon to sort through some very difficult issues. On the one hand, everyone in this party acknowledges that the New Zealand Security Intelligence Service (SIS) and the Government Communications and Security Bureau (GCSB) are here to stay and that we need them. I think the Greens are slightly more ambiguous about that, and would perhaps like to see those organisations’ remits narrowed a little, but even the Greens acknowledge that the GCSB, particularly around cyber-security, is necessary, and it sees a role for the SIS. If we all accept that there is a need for those agencies, then the next question is how you properly regulate them, given that they have got these powers that they exercise mainly in secret that include powers of search and surveillance, mainly on people from overseas but also, in limited circumstances, upon New Zealanders.

It is the task of this Parliament to get this balance right between the powers that those agencies need for the protection of New Zealand and New Zealanders and the oversight that is needed to make sure that they do not abuse those powers. I think we have pulled it off in this piece of legislation and I think we have done it in a manner that shows that—you know, although our system lacks some of the checks and balances that you find in jurisdictions where there is a division of powers between a president and the parliament, or between more than one House of Parliament even, if you do not have a president. In our unicameral system, although we do have a lot of power vested in our smaller number of institutions, we also seem to operate in a way that gets these things right over time. I think that is a wonderful testament to our country—that here we are, this little country at the bottom of the South Pacific that has got this wonderful history of getting this balance right, and, therefore, sustaining our democracy in a way that very few countries in the world have.

I say this when I am out speaking to school groups; I say that there are virtually no other countries, or very few other countries, in the world that have got the length of unbroken democracy that we have got. There is no one in South America, no one in the whole of Africa, no one in Asia, virtually no one in Europe—because, of course, they have been disrupted by world wars—and you are left with a few countries like Switzerland, which did not give the vote to women until the 1970s, as it happens, and Great Britain, Australia, Canada, New Zealand, for example. We really have been the carriers, I think, of really good examples of democracy in action, and this is one of them.

So that is the positive. What led to this was actually we got closer to the brink of poor practice than we should have in this country. We had a number of things that had gone wrong. I am going to list them again, partly because I named the wrong agency last time. Of course, I think the worst example was Warren Tucker, then head of the SIS—and I apologise for besmirching the GCSB when I spoke about this in an earlier reading. He enabled a political attack against Phil Goff during an election. He gave, effectively, a misleading release of information to Whale Oil, which we know at the time was acting in league with the Prime Minister’s department. By that I do not mean the Department of the Prime Minister and Cabinet (DPMC). When I said that in an earlier contribution, some people said I was criticising the DPMC. I was not. I was talking about the Prime Minister’s own internal office.

Anyway, there was collusion with Whale Oil, and the SIS knew that this position had been misrepresented, but did not correct the record, and therefore there was a political attack, which was brought by the then Prime Minister, John Key, against Phil Goff, and Warren Tucker did not correct the record. It only came to the light of day some years later when the Inspector-General of Intelligence and Security, Cheryl Gwyn, showed what had happened. I think that came up, in a time sense, after the Nicky Hager book had been published. So that is the first and probably most egregious example.

The other example was the Dotcom raids and the litigation that followed, which showed that the GCSB misunderstood its legal powers. Not only did it get it wrong but apart from getting it wrong there was also ambiguity about some of its other powers, and that needed to be sorted out. We passed some interim legislation in this House, and that interim legislation caused protest meetings up and down the country because people said that it was expanding the powers of the GCSB to spy upon New Zealanders. That was denied by the Government until right at the third reading, when the Prime Minister, under pressure from civil society and also from the Opposition, was forced to concede that, actually, as drafted, it did allow quite broad spying on New Zealanders. He said that he would not operationalise those powers, which of course meant that although they were permitted at law, he said: “Trust me, I’m not going to use them.” Well, that is less than desirable. You should have those powers properly constrained in legislation.

The third example is in the UK—and I have previously spoken about this—where for many years neither the Parliament nor the security oversight committee there knew that data was being collected from the telecommunications companies, which included locational information about where people were actually physically situated including in respect of UK residents, and given to the security agencies; no warrants, no oversight. The only person who knew it was a Minister in the Government, and again that had been hidden from the Parliament and from the oversight committee for years, and that was wrong too.

We have a piece of legislation that I think is fit for purpose. It gets the balance right. There are many people to thank. I want to add my thanks to the staff from DPMC. I have been around this place for 15 years now. I have never seen a better process. The only process that is comparable was also a very good group of officials, including from the Prime Minister’s department, in respect of omissions pricing—another very complex piece of work. I was really proud to be part of that, and to see how good our Public Service can be.

It was only possible because we have a Minister who is on the top of his game. The Prime Minister saw that there had been some mistakes made here and so rightly delegated this to the Attorney-General, and he is a man who knows that when you are given authority from Parliament to go forth and do something a bit like what the Cullen-Reddy report says, you are actually not slavishly bound by the first draft of the bill. Less competent Ministers—and we see them in Parliament—do not feel that they have the authority or the room to move, and they are less reasonable in their response.

Because of the Minister’s confidence and his desire to reach out across Parliament for, I suspect, the same reasons that I have talked about, in terms of the importance of democratic integrity around these important settings, he was determined to let the Foreign Affairs, Defence and Trade Committee do its work. The chair of the select committee at the time, who saw it just about all the way through, the Hon Mark Mitchell, did a good job, and we had great submissions from the Privacy Commissioner, from the Law Society, from civil liberty groups, from the unions, from the Inspector-General of Intelligence and Security, Cheryl Gwyn—who I think is an absolutely star public servant; I suspect one of the best in the world, actually—as well as many other individuals, and I probably missed out some of the people, like Sir Bruce Robertson, who came to us.

The other select committee members, who have already been named and I will not go through them all—I thought everyone contributed very, very well and as a consequence we knocked out purpose-based warrants. We got the definitions around “Type 1 intelligence warrants”, with the higher-level “national security” term left undefined, but there are real limits to how far you can go in respect of economic matters and really focusing in on things like terrorism and espionage.

I think we now have amongst the best oversight legislation in the world. We have got transparency with all of the things that have to be behind the scenes and able to be inspected by the inspector-general that were not until this period necessarily available to her, and, as a consequence, this bill has my unconditional support. I look forward to it being passed into law.

In many ways, I do not need to add a lot. When you begin a third reading of a bill as substantive as this, and hear the experience and perspective that we have heard this afternoon shared by the Attorney-General; the Leader of the Opposition; my colleague, the former chair of the Foreign Affairs, Defence and Trade Committee, Mark Mitchell; and now the very considered perspective by the Hon David Parker—as somebody relatively new here, coming towards the end my first term, all I can add to it is that I have found it a process that has been extraordinarily rewarding.

From the calibre of the bill that we first received; from the extraordinary advice and intellectual heft brought by the officials; from the collaborative model that the former chairman ran and Minister Finlayson’s ability to work with all parties to get an enduring piece of legislation that, as you can hear by the voices of this Chamber, we are all proud of; and from the way the Minister stood, time and time again, to answer the various technical, precise questions of emphasis and judgment that all members brought to the Committee of the whole House stage, we have now landed a final bill that we are all but unanimous in support of, with the exception of the Greens—but even their exception is from a point of a reasoned view, which the Attorney-General has already acknowledged.

For me, one of the highlights of the last few months, as we have stepped through that, is how we landed a clear, effective warranting regime. I think the triple-lock mechanism is really innovative, and I think where we landed in respect of national security and those closed lists of harm is impressive—in particular, where we have pushed for the appropriate balance between protection of our civil liberties and protection of this country from harm in a highly volatile world. This bill is fit for purpose—if I can echo the Hon David Parker—and I have every confidence that this legislation, both in process and content, has set the bar for enduring legislation in this House. I thoroughly support it in its third reading. Thank you.

We have come a long way in the saga of the Intelligence and Security Bill that is before us in this final reading. The Committee of the whole House did a fine job last week in scrutinising the draft legislation with its quite complex redraft of sections and its compelling political judgments that surrounded some of the issues involved. The Foreign Affairs, Defence and Trade Committee had also done a good job in debating and discussing the draft in its different stages. The officials, all corners—the Government departments, the drafting office, the agencies themselves—excelled themselves in servicing the committee and the Parliament as a whole.

It may sound from this panegyric as if the Green Party were about to embrace the legislation with a blessing and vote it all the way through—

💬 Hon Christopher Finlayson: It’s not too late.

—but, of course, as has been pointed out from the beginning, and explained all the way through, this is not the case—despite the last minute plea from the Attorney-General, which we do appreciate and are tempted by, but no.

We opposed the bill from the beginning, and we continue to oppose it today. We shall be voting against it, but that will not be from a dissatisfaction with the parliamentary procedure observed or the democratic process that the bill has taken, all the way through to this third reading. If one were disposed to agree with the philosophical basis of the bill, one could only admire the finished product and support it. Our opposition rests on a disagreement over the basis on which the bill rests, as we have pointed out. A disagreement that the world of the 21st century, admittedly a tough and dangerous place, will be made less so by making our national intelligence agencies more effective and efficient on the basis of the prevailing world view, as articulated by Government leaders.

We do not accept that a discernible but modest increase in the threat assessment level of one of the nine harms to national security identified in the draft warrants the sledgehammer that is encased in the velvet glove that is this bill. We do not accept that a more efficient and effective version of Five Eyes is desirable when the leading agency is tormented by the banality, the oddity, and the crudity of the present US administration. We do not accept that the so-called random profiling of New Zealand citizens of Middle Eastern origin has tilted so markedly against Syrians, Tunisians, and Egyptians with New Zealand citizenship since the legislation arising from the Countering Foreign Terrorist Fighters Legislation Bill came into force in this country, as we warned would happen back in December 2015. This is not the time to be tightening the cultural screws against one’s own citizens. It is the time for a more expansive, more understanding, more compassionate, and more universal world outlook. We do not detect that in the bill.

So those are our criticisms, but, to return to the positive, we appreciate the manner in which this debate has been held around the bill and the diligent, competent, and respectful way in which the Attorney-General has ushered the bill through its various stages. In particular, we appreciate the increasing recognition, articulated by the Minister and, equally importantly, by senior Labour colleagues, of the merit of expanding the Intelligence and Security Committee to reflect the proportional representation of modern New Zealand parliaments. The amendment to the bill to reflect this, just last week in the final stages of the Committee, was, we believe, one of the better examples of democracy in action.

So it is with the same measure of respect to all our colleagues in this House that we cast our vote alone against this bill. We thank the Attorney-General, the Government, and all other parties for their input into the democratic process. May our children live in a safer and more enlightened world than we do.

I want to begin by agreeing with the Attorney-General that it was very important, with this particular piece of legislation, that there be broad parliamentary support for it and, indeed, broad public support for it. In fact, you could barely think of another piece of legislation in which a cross-party process and the generation of a high level of public support was more important. In that context, when New Zealand First began to first look this legislation, we set ourselves four main targets. One was to ensure that the protection of civil liberties, personal freedoms—in particular, privacy—would happen, but also that we would get a means by which threats to New Zealand’s safety and security, including our essential interests, would be recognised.

To that end, we always recognised the need for effective intelligence, and, in limited circumstances, we accepted there would be a need to conduct surveillance over New Zealand citizens and permanent residents, as well as others. But all of that had to be subject to three main provisos. They were, first of all, that there had to be a robust process for authorisations for warrants to conduct those activities. Secondly, we had to be sure that the law itself was clear, was certain, was understandable, and would be effective. Thirdly, we thought it was very important that there be a very effective and comprehensive system for review and oversight of the activities of those organisations.

We are, as a result of a very good process, now satisfied that this legislation does achieve all those things. We know that the previous legislation was grossly inadequate—it did not achieve hardly any of those things that I have mentioned—and the only good thing that came out of the previous bit of legislation in the last term of Parliament was that an undertaking was given that there would be a comprehensive review. That culminated in the Cullen-Reddy report, which I thought was extremely good. There has also been very good public consultation and a very collaborative process, as others have mentioned. So this bill is a very good outcome to produce a comprehensive code to govern security and intelligence activities in New Zealand. In a very real sense, therefore, this is Parliament’s bill, and, in a very real sense, it is the community’s bill, not just a Government bill. That is very important, because as a result of that we will get the public trust that all of us seek.

I want to talk a little bit more about trust, because I think that is going to underpin the operation of the bill in the future. When agencies such as the SIS and the GCSB are given special powers to do things that would otherwise be unlawful, it is very important that they should be able to develop trust, because trust is not given—not like the special powers, which are given. Trust has to be earned. It is, therefore, now over to those organisations to demonstrate that they are worthy of that.

This bill, as good as it is, can go only so far by providing good processes for authorisations and good systems for oversight and review. In the end there must be trust deserved by the responsible Ministers, by the commissioners dealing with warrants, and by the inspector-general. Most importantly of all, it is very important that the GCSB and the SIS, through their conduct, develop public trust as well. They must show their commitment to obedience of the law, and always keep in mind the purposes of this law—to protect privacy as well as to protect New Zealand from harm.

The purposes of the bill are, therefore, very important. I was really pleased that no attempt at a close definition of the term “national security” was attempted. I thought that was a pretty pointless exercise, because we have got, instead, some very comprehensive clauses in the bill, which are better to rely upon. Those clauses, in particular, are clauses 55A and 55B: 55A relating to New Zealand citizens or permanent residents; and 55B relating to others. Those clauses define the circumstances in which an intelligence warrant can be issued.

In addition, there is a closed list of harms provided, which would be applicable when such warrants were being applied for. I think it is important to read those out once again, because it gives people a clear understanding of what it is that we are trying to achieve. Those harms include terrorism and violent extremism—all too prevalent in the world today—espionage or other foreign intelligence agency activity, and sabotage, which is always possible in any country. They include the proliferation of weapons of mass destruction, and serious crime—a major issue for New Zealand, as it is in so many other countries.

Those harms also include interference with information or information infrastructure—again, an extremely important harm that could be done to New Zealand—threats to the operations of the Government of New Zealand, and threats to the sovereignty of New Zealand, including the protection of its borders and the right of this country to manage its own natural resources. There is more, but those, I think, are the most important harms to which this country could be subject.

The basis of the trust of which I spoke is an assessment of the necessity for both type 1 and type 2 warrants. It has to be demonstrated that the warrant applied for is necessary for all those purposes and against all of those harms that I have mentioned. That assessment must, in the case of type 1 warrants, satisfy both the responsible Minister and a Commissioner of Intelligence Warrants, and for others, just a commissioner alone.

New Zealand First believes that as a result of the processes that we have had in the development of this legislation we have achieved that all-important balance of the need to protect personal privacy on the one hand, and to deliver an effective and more than adequate system to protect New Zealand’s security on the other hand. As I have said, I think that balance in this legislation has been very effectively achieved. We in New Zealand First also believe that given those processes for authorisations and the systems for oversight, we now have an excellent legal framework to achieve the objectives that I mentioned first in this speech.

So now, provided we get effective leadership in the SIS and GCSB in particular, I think that New Zealanders ought to have full trust in the legislation and in the agencies—that we will have a system to protect their individual interests but also a system and legislation that will protect New Zealand from those harms that I mentioned earlier in my speech. Given that trust, I am sure that New Zealand can—as David Parker said—boast that it will have the best security and intelligence system, and the best-balanced one, in the world.

I in particular have a great deal of trust and confidence in it. I do not accept what the Greens have said about this. I do not think their approach has been—while sincere—very practical. I do not think their alternative approach is one that would deliver a satisfactory level of security for New Zealanders, which I believe almost all New Zealanders actually want. I rest that on what I say—that in addition to the legislation we do need trust, and I think this legislation will generate that trust. That trust has to be earned, but I am confident that we will get it and that New Zealanders will see that that is the case.

In that context New Zealand First is very happy with this bill. We were very happy with the process that has led to us getting to this stage, and we will have no hesitation whatsoever in voting for it.

Thank you for the opportunity, Mr Deputy Speaker. My colleague—the senior whip—has asked me to speak very briefly, so I will heed his wishes, as a good MP should. I just want to say that there is very little that I could find in Mr O’Rourke’s speech that I could actually disagree with, because I think this bill is a testament to the way in which Parliament should work more often, and also a testament to the way in which select committees can examine legislation and can work together as a committee to find ways in which we can work with officials and other members across the Chamber to fine-tune—what Mr O’Rourke described as an excellent legal framework—a piece of legislation so it is fit for purpose and works well.

I also respect that Dr Graham does have a viewpoint around these matters that differs significantly from a number of us in the Chamber, but I think we must also acknowledge the way in which the Green Party also worked well on the Foreign Affairs, Defence and Trade Committee consideration of this bill—we just landed in very different places.

But in terms of confidence, and in terms of ensuring that New Zealanders can better understand the world in which we live, I think this bill brings together pieces of legislation and brings together a framework under which some important Government agencies can work, in a way that New Zealanders can better understand and better have confidence in. The security and intelligence agencies in New Zealand play an important role, but there must be good oversight. We heard many of the aspects under our legislation around oversight, which, I have to say, gives me a lot of confidence. I have to say that I am looking forward to seeing those agencies and the Minister and the many other oversight institutions in place, such as the Commissioner of Intelligence Warrants and the select committee, working very well to ensure New Zealanders can also enjoy that same confidence. I commend this bill to the House.

It is a pleasure to make a speech in this third reading debate and to echo my colleagues’ support for the bill. This is a very important bill, and I want to echo my colleagues’ commendation of the approach of the Attorney-General and Minister in charge of the NZ Security Intelligence Service, the Hon Chris Finlayson. He has been open in his consultation and he has been determined to forge a multipartisan consensus as far as possible—it is not quite complete—in this House. That is entirely appropriate in legislation of this nature, which must stand the test of time and must, by definition—as it requires and empowers the intrusive role of the State—have support broadly around this House, and it does.

This bill seeks to achieve two things. It seeks to modernise and make more effective the legislative framework that empowers the operations of our security services and, in particular, the GCSB—the Government Communications Security Bureau; the computer spies, as it were. Secondly, it seeks to reinforce and rebuild public confidence by ensuring that there is a strong and watertight set of protections around privacy, around human rights, around the rule of law, and around the constitutionality of the exercise of those powers. Although I was not present on the Foreign Affairs, Defence and Trade Committee for all of the bill’s consideration, for that which I have seen I want to add my thanks to that of my colleagues for the officials, who worked so diligently and robustly on the bill. I think it largely achieves those things.

Let me note, on the effectiveness side, several matters that the bill sets precedents on, which I described in the second reading as crossings of Rubicons. The first is that, historically, New Zealand law has always kept separate the domestic and human intelligence role of the Security Intelligence Service from the very largely international and cyber role of the Government Communications Security Bureau. This bill brings both together for the first time in a single coherent legislative framework, as was recommended in the Reddy-Cullen review. That is something that, provided the protections are robust, we feel is appropriate. It will make the agencies more able to work sensibly together.

Secondly, the bill codifies for the first time a broader set of ways in which the security agencies might work directly with our police and with other relevant Government agencies like Customs or Immigration. That is also appropriate, because the right hand must know what the left hand is doing and there must be codification of what is permissible and not permissible in terms of those agencies’ interactions. But it is vital, as we saw from the much-contested fiasco around the early interdiction of Kim Dotcom, that the mechanisms for that interaction are robust, that they are clear, that they are within the rule of law, and that they are strictly monitored—and the bill provides for that.

A third and very important Rubicon that is crossed here for the first time is that there is an explicit ability for the New Zealand GCSB to carry out an intercept without a warrant on a New Zealand citizen. That is something that was technically possible under the previous law changes, but for which the former Prime Minister, Mr Key, gave a blanket assurance that no action would be taken—that it would not be used. It was something contained in the information infrastructure provisions. Well, in this bill that ability is written in explicitly for the first time. It is absolutely appropriate, therefore, that that happens only with sufficient protections. It can happen only if there is no other way, in respect of a great harm—and the types of harms, like a terrorist attack, are listed explicitly—and if the normal processes could not be achieved because there would not be time to get a warrant. And, if the special, urgent, or very urgent processes are used, then they must be notified to and checked by the Inspector-General of Intelligence and Security, who has the ability to nullify the action and nullify any information gained. If it is not a properly sanctioned operation, then those protections exist.

I would say this to Minister Finlayson: that was not necessarily an easy position for this side of the House to come to. We were necessarily reassured by the protections in the bill and we will want the cooperation of the Government, which I am sure you would want to see, to see that it is effectively and thoroughly monitored going forward.

There are a number of matters in the bill that the select committee made further amendments on, and I just want to touch on a couple of those, as I have a little time. The details of the two-part test for the issues of type 1 intelligence warrants I have touched on, but it is going to be very clear that the authorising Minister and the Commissioner of Intelligence Warrants must be satisfied that a proposed otherwise unlawful activity by an agency—an intercept, for example—would be necessary to contribute to the protection of national security, as defined in the bill. Secondly, the agency’s action would be necessary to identify, enable the assessment of, or protect against one or more of a limited and specific set of harms, like a proximate threat of sabotage or a terrorist incident. These are not general, sweeping powers to the extent that it is a blanket, catch-all authorisation.

There was significant debate in the Committee of the whole House stage and in the select committee about which Minister should be the one to issue those warrants alongside the Commissioner of Intelligence Warrants. There was a debate as to whether it should be the Attorney-General, who holds a special and independent role as a law officer, or whether it should be the operational Minister of intelligence and security. Currently the Hon Chris Finlayson wears both hats, but it is unlikely that that will necessarily remain in future—for example, after 23 September, who knows? But we must allow in the law for all sorts of possibilities. Mr Finlayson told the House that as a law officer, he felt that it was more important that the Attorney-General stood back from the day-to-day operations and that, operationally, it is better for the Minister directly involved to be the one issuing the warrants.

Our side of the House was persuaded by that, on balance, but it is an on-balance call and is one that will require ongoing monitoring, because the risk that we are all aware of is that the Minister concerned becomes operationally too close to his or her department and lacks—or could lack in future; not currently—the objectivity of judgment to draw a line at exactly the right place where an intercept would not be justified because there were other lawful means, for example, of preventing the harm. I do want to note that that is a debate that has been had. We have reached a point of balance that allows the operational Minister to be one of the signatories, but that will continue to be monitored.

There is a lot of debate about third-party intercepts. I am pleased to see that this bill makes explicit that it is not possible for our intelligence agencies to request or receive blanket surveillance on New Zealand citizens from a third party as a way of contravening or getting around prescriptions that would otherwise be in the New Zealand domestic law. That is welcome because, of course, many of today’s IT infrastructure providers are global in nature and located in the home jurisdiction of friendly countries, which may well be partners of our agencies.

I want to stress the importance of those agencies always and without fail operating within the law as put in the bill and as stressed by both the inspector-general and the Ministers. Public confidence is slowly built and can be destroyed with a single incident. My colleagues have mentioned the Warren Tucker - Phil Goff interchange. That was a low point. I am happy to say that the current director of the SIS enjoys the confidence of the Labour Opposition, and we would not expect to see that recur.

We think this bill is a step forward in terms of enshrining the protections that New Zealanders hold dear. We will be vigilant. We will monitor this most important piece of legislation. I want to join with my colleagues in extending commendation across the House to all members of the select committee, to the officials, and to the Ministers who have worked so hard to bring this bill to the House. Thus we support it in its passage.

It is a pleasure to rise briefly on the third reading of the Intelligence and Security Bill and to commend the collaborative approach across the House that brings the bill here today. This was reminiscent of the foreign fighters legislation, which was similarly guided by best intent in balancing our security interests with privacy and human rights concerns.

Strong oversight frameworks have been developed and described, and what is not so described but is inherent is the trust we have in the personal integrity of each of our intelligence and security personnel. This integrity and a strong framework will, I believe, protect our interests, and I commend this bill to the House.

I rise, as other speakers in the Labour Party have done, to support the Intelligence and Security Bill on its third reading. I want to do as others have also and express my thanks to the Minister who has shepherded the bill—although it is not in his name—the Attorney-General, Chris Finlayson, who is clearly showing off his holiday snaps as we speak. Mr Finlayson has done an excellent job in shepherding this legislation through. All of us on this side of the House over the years have grown to respect the Attorney-General for his sharp legal mind and kind words that he has expressed on many occasions to the Opposition.

It is true to say that the work he has done on this bill has been exactly what I would hope Ministers would do on every piece of legislation: engaging with all political parties in Parliament—and, indeed, with members of the public—around the justification for the bill; listening to concerns and suggestions, adopting some of them, and being prepared to negotiate those through; and then, when the bill returned to the House, actively engaging in the committee of the whole House stage in what I think was actually a debate, which is precisely what we should do more often on pieces of legislation. I join with the Minister in thanking other colleagues in the House who participated in that, and, in particular, Kennedy Graham, who gave an alternative view but from a very reasoned perspective, and I think that was important for the quality of the debate.

I also want to acknowledge the officials who have worked extremely hard on this legislation. This is a big moment because this has been a big piece of work, but more than that I think it is—and the officials could never say this—bringing some order to what has been, frankly, disorder when it comes to the way that security agencies have operated in New Zealand. The officials deserve an enormous amount of credit for the work that they have done in putting this together.

How we came to this legislation is important. We came to this legislation, in part, as a result of a number of incidents that lowered the confidence of New Zealanders in their security and intelligence agencies. That confidence is essential, because the powers that we give, as this Parliament, to the security agencies are vast. If anyone wants to look at the bill—in particular, I was looking at clause 65, where you read the “Powers of New Zealand Security Intelligence Service acting under intelligence warrant”—those are intrusive and invasive powers. They are powers that I as a parliamentarian reluctantly grant to agencies of the State because they are such intrusive powers. But we must grant them because we live in a world where we need to ensure that we protect the security of New Zealanders and of our country. So, in granting those powers, we have to set up a balance in our legislation—a balance between protecting the security of New Zealanders and protecting their privacy and their basic rights. I do believe the legislation does a good job of that balance.

But the confidence that New Zealanders have had in the agencies has diminished. The Warren Tucker - Phil Goff incident has been mentioned, and there was the situation around the Kim Dotcom raid and all that followed from that. There was the situation around the appointment of Ian Fletcher outside of normal processes to run the GSCB, and the news that the GCSB had, in fact, been illegally spying on various New Zealanders over various periods of time. All of these contributed to New Zealanders losing some of their faith and trust in these agencies—agencies in which we had entrusted such intrusive powers. It was incumbent on not only the Government but also this Parliament to rebuild that trust and confidence, and my view is this legislation goes a very long way towards that, and that is why I am prepared to support it today.

In particular, whilst granting those very intrusive powers, what this legislation does is it puts in place a series of checks and balances—one of which, from the 2013 legislation, I think I can acknowledge I was wrong about, and that was the role of the inspector-general. I do want to put on record, as I have earlier in this debate, that I do think the beefed-up powers of the inspector-general and the appointment of a deputy have actually made that office much stronger and a much better part of it. But we needed to do much more after the 2013 legislation. In particular—and other colleagues have spoken about this—we now have a much stronger process around warrants. The triple-lock process for the granting of warrants gives the confidence to me and, I think, to this House, that where warrants are going to be put in place we have not only the Minister but also the Chief Commissioner of Intelligence Warrants, and then the inspector-general as the third lock on those warrants—that is important.

As an aside—and this is no reflection on the Attorney-General whatsoever—it is my view that the powers that we are granting to these agencies are such that I would rather the Minister in charge was the Prime Minister. I think that it is actually akin to some of the decisions that we make in this House around sending people to war and putting people into danger. I actually believe that this should be the role of the Prime Minister. I think the Attorney-General has fulfilled the role admirably in the time that he has held it, but for New Zealanders to maintain the level of trust and confidence we want from them in these agencies, my preference would be that the Prime Minister is that Minister. As a result, I am very supportive of the changes that were made to clauses 53(2)(a) and 52(3) that actually take the Attorney-General out and put in the Minister responsible, because I believe one day that will no longer be the Attorney-General of any administration, but will actually be the Prime Minister.

The definition of “national security” is absolutely critical in here, and, in my view, clause 55 of the bill is indeed probably the most important clause that we are passing today. We are now making absolutely clear the specific situations in which the powers of the security intelligence service are to be given warrants for the protection of national security. We are specific about terrorism, about espionage, about sabotage, about the proliferation of weapons of mass destruction, and, indeed, about serious crime, which we redefined during the Committee stage in a way that, again, I think gives more confidence to New Zealanders that we are being absolutely clear that when such warrants are being granted they are being granted for the right reasons. Many of us have had fears in other parts of our lives—going back to the 1970s for some members of the House and for others going into the 1990s—about the way that these powers are going to be used, but those powers are now proscribed in such a way here that I believe we now understand what national security is and the limitations upon that.

The only other area I really want to spend any time on is around the question of oversight. I have already mentioned the importance of the role of the inspector-general and how well I think that is working, and there are one or two tweaks around that in this piece of legislation. The bit that I still feel that we have missed a trick on here is around the role of the parliamentary committee that has oversight. I think in time—and the Minister has made the reference several times to the review process—we will, as a Parliament, decide to strengthen that. I would encourage the Minister—and, indeed, hopefully we will be in a position to do this after 23 September—to look around the world at the other ways that oversight is undertaken.

The Australians, in their work, ensure that they have non-Ministers involved. We will do that here, but we need, as an MMP Parliament, to be aware of the voices in this Parliament. As I said in the Committee stage, as long as people on the committee are prepared to obey by the rules and to undertake to keep the secret information secret, I do not think that we should have any fear whatsoever of people who have a different view of the scope of how security agencies work being on those committees. In other parts of the world—if we go into Scandinavia and into Norway—they have, in fact, non-politicians who are part of the oversight regime. Obviously, we could not have non-politicians on a parliamentary committee, but we could build into our processes some kind of public oversight that would, again, help to strengthen New Zealanders’ confidence in these agencies.

Today I am happy to support this bill because we are giving the powers that are needed to the security agencies with the balance of the confidence that we have oversight regimes that will not be misused. New Zealanders can only have that confidence if they believe that the oversight mechanisms involve them and involve their elected politicians. Our oversight of the security and intelligence agencies does not stop today. The price of freedom, as they say, is eternal vigilance. We have to ensure that we continuously and constantly monitor this legislation, and allow New Zealanders to believe that their security intelligence agencies are working in their interest and will be monitored closely. That is our obligation.

It is a pleasure to be the final speaker in this third reading debate, in what has been quite a historic and a momentous debate, I think, in terms of this Parliament’s legislative agenda. I have sat and listened very carefully to the intelligent, courteous, and thoughtful contributions from across the House on this important legislation. It is a good bill. It is a bill that I think exemplifies the way our Parliament should work, and it is an example of our Parliament working at its best. It is my very great pleasure to commend this bill to the House.