Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698846210417.pdf (New Zealand)
Countering Terrorist Fighters Legislation Bill Government Bill As reported from the Foreign Affairs, Defence and Trade Committee Commentary Recommendation The Foreign Affairs, Defence and Trade Committee has examined the Countering Terrorist Fighters Legislation Bill and recommends by majority that it be passed with the amendments shown.
Introduction The Countering Terrorist Fighters Legislation Bill is an omnibus bill that would amend the Customs and Excise Act 1996, the New Zealand Security Intelligence Service Act 1969, and the Passports Act 1992.

The bill is a response to the rapidly evolving threat of terrorism both locally and internationally.

It introduces short-term measures allow- ing the monitoring and investigation of foreign terrorist fighters and other violent extremists, and the restriction and disruption of their travel.
The measures were identified during a recent review of the adequacy of New Zealand’s capability, capacity, and legislation to re- spond to the threat, and how this country’s safety and security could 1—2 2 Countering Terrorist Fighters Legislation Bill Commentary be increased.

The provisions in the bill as introduced would be sub- ject to a sunset clause expiring on 1 April 2018.
A more comprehen- sive intelligence review required under the Intelligence and Security Committee Act 1996 will begin no later than 30 June 2015.

New Zealand’s domestic threat level was recently raised from very low to low, indicating that a terrorist attack is possible but not likely.

Government agencies have identified 30 to 40 people of concern, and another 30 to 40 people requiring further investigation.
The provi- sions in the bill reflect in part New Zealand’s international obligation to comply with the recent United Nations Security Council resolution 2178, which includes concern about people travelling to become for- eign terrorist fighters, and urges States to restrict their movements.
Monitoring and investigating foreign terrorist fighters The bill as introduced includes provisions that would allow the New Zealand Security Intelligence Service (NZSIS) to carry out visual surveillance on private properties under warrant, and to con- duct surveillance activities for up to 48 hours without a warrant in situations of emergency or urgency, such as where a person not pre- viously identified as a risk is about to travel to a conflict zone.
These powers are modelled on those available to the New Zealand Police under the Search and Surveillance Act 2012.

Safeguards in the bill include external oversight by the Inspector-General of Intelligence and Security, and annual reporting to Parliament.

The bill would also amend the Customs and Excise Act 1996 to allow the NZSIS and the Police to access Customs information for counter- terrorism investigation purposes.
Restricting and disrupting travel Existing provisions in the Passports Act 1992 provide for the can- cellation of an individual’s travel document for 12 months where the person poses a danger to security.

The bill would extend this can- cellation period to up to three years to address the small number of people who pose a danger for a longer period.
The person concerned would have the right to make submissions to the Minister of Internal Affairs, and to appeal or seek a judicial review of the Minister’s de- cision, and the Minister would undertake a periodic review every 12 months.
Commentary Countering Terrorist Fighters Legislation Bill 3 To respond to situations where the NZSIS becomes aware at short no- tice of a person seeking to travel imminently to take part in a terrorist act, the bill would allow the Minister to suspend a person’s passport or other travel document for up to 10 working days.

Notice would have to be given to a person that their passport or travel document had been cancelled.
However, the bill provides that if the Minister is satisfied that providing notice immediately would put an investigation at risk or endanger the safety of any person, the Minister could defer notification for up to 30 days.

This commentary covers the main amendments we recommend to the bill; it does not cover minor or technical amendments.
Sunset clause We recommend bringing forward the expiry of the sunset clause from 1 April 2018 to 1 April 2017, so that the legislation would expire within the life of the current Parliament.

We consider it appropri- ate that the extensive powers provided for by the legislation should operate for a shorter period, and that the comprehensive intelligence review should be completed in that time.

Passports We recommend amending clause 4 to include a transitional provision in new section 46.
It would provide that when the temporary provi- sions expire on 1 April 2017 a person may apply for the return of their travel document 12 months after the date it was recalled.

The inclusion of this section, which would be repealed on 1 April 2018, would provide certainty for New Zealand citizens about the arrange- ments for when the temporary provisions expire.

We would like to address two concerns raised by a number of submit- ters regarding the effect of denial of a passport.
The first is that where the passport of a person outside New Zealand is denied or cancelled the person concerned might be stranded with no way home.

This is not the case; in this situation the Minister must upon application issue a journey-specific emergency travel document to the person so they could re-enter New Zealand.

The second concern is that the denial of a passport would render a person “Stateless”.
This is also not the case; denial of a passport affects only a person’s freedom to travel, it does not affect their nationality or citizenship.

4 Countering Terrorist Fighters Legislation Bill Commentary Access to Customs information Clause 7 of the bill would insert new section 280M into the Customs and Excise Act 1996, allowing authorised persons from the NZSIS and the New Zealand Police to access Customs databases to search for information for counter-terrorism investigation purposes.
We recommend the insertion of new subsection 280M(3A) to require the chief executive to consult the Privacy Commissioner before en- tering into a written agreement with the Director of Security or the Commissioner of Police.

This would provide for appropriate con- sultation on the necessary information-sharing.

We also recommend amending the definition of “information” in new subsection 280M(5)(b)(ii) to read “information Customs is entitled to view under any of sections 38G to 38K”.
We also recommend inserting new subsection (c) to exclude information which Customs is not entitled to view under sections 38G to 38K.

This would make it clear that the legislation would not expand the existing access of the NZSIS or the Police to passenger name record information, and it would provide for the application of established controls to the accessing of this data.
Increased surveillance powers Clause 9 of the bill would provide for the NZSIS to undertake visual surveillance, observing activity in private premises, based on sim- ilar provisions in the Search and Surveillance Act 2012 that apply to the Police.
In line with the counter-terrorism intent of the bill, and to restrict the scope of visual surveillance warrants, we recom- mend amending subsection 4IB(3) to provide that warrants for visual surveillance must only be granted for the detection, investigation, or prevention of any actual, potential, or suspected terrorist act, or fa- cilitation of a terrorist act.
We consider that given the intrusive nature of the proposed powers there should be more oversight of the issuing and execution of visual surveillance warrants, and our amendments reflect this.

We recom- mend inserting new subsection 4IB(9A) to require the Director, as soon as practicable after a visual surveillance warrant is issued, to provide the Inspector-General with a copy of that warrant.
We also recommend amending subsections 4IB(11) and 4IE(8) to in- crease the fine for a person who knowingly fails to destroy irrelevant Commentary Countering Terrorist Fighters Legislation Bill 5 records resulting from visual surveillance under subsections 4IB(10) and 4IE(7) from $1,000 to $10,000.

This significant increase reflects the seriousness of the offence.
Warrantless emergency surveillance We appreciate that the nature of intelligence investigations means that urgent situations can arise where immediate action may be neces- sary to ensure New Zealand’s safety and security.

Our amendments seek to provide appropriate safeguards for the expanded surveillance powers that the bill would confer on the NZSIS.
In line with the counter-terrorism intent of the bill, and to lessen the scope of warrantless surveillance we recommend amending subsec- tion 4ID(1) to provide that authorisations for warrantless surveillance must only be granted for the detection, investigation, or prevention of any actual, potential, or suspected terrorist act, or facilitation of a terrorist act.
We recommend amending new section 4ID(3) to shorten the time for which the NZSIS could conduct surveillance without a warrant in situations of urgency or emergency, from up to 48 hours to up to 24 hours.

In view of the many submissions on this matter we consider that a shorter period is appropriate, since it is a significant step to confer warrantless powers on the NZSIS, and this is interim legislation.
Because of the importance of notifying relevant persons as soon as possible of an authorisation for warrantless surveillance, we recom- mend amending subsection 4IE(1) to require the Director to inform them immediately.
We also recommend inserting new subsection 4IE(3A) to require the Director to refer the matter to the Inspector-General as soon as prac- ticable after the Minister or Commissioner issues a direction under subsection 2 that an authorisation for warrantless surveillance not proceed or be discontinued and information collected be destroyed.

We consider this oversight to be important in these situations.
We also recommend amending subsection 4IE(6) to provide that after receiving a report under subsection 4 (where an authorisation has ex- pired and no application has been made for a warrant concerning the same matter) the Minister, or the Minister and Commissioner, must determine whether it was appropriate for the authorisation to have 6 Countering Terrorist Fighters Legislation Bill Commentary been given, and they must refer the matter to the Inspector-General for investigation.
This would allow an examination of each warrant- less surveillance case that was not followed by a visual surveillance warrant or an intelligence warrant.

We recommend inserting new subsection 4IE(6A) to provide that if an authorisation for warrantless surveillance is followed by an appli- cation for a visual surveillance warrant or an intelligence warrant in relation to the same matter, and that application is refused, the Dir- ector must refer the matter to the Inspector-General for investigation.
We recommend inserting new subsection 4IE(7A) to require the Min- ister, as soon as practicable after having decided to retain records under a warrantless surveillance authorisation where no warrant is subsequently obtained, to refer the matter to the Inspector-General for investigation.
We recommend inserting new subsection 4IE(9)(ba) to require the Director to include in every annual report the length of time, ex- pressed in 12-hour bands, that the authorisations for warrantless surveillance remained in force.

We would like to see more frequent reporting than the annual report- ing that is provided for in the bill as introduced.
We recommend the insertion of subsection 4IE(10) to require the Director, as soon as practicable after each year ending on 31 December, to provide the Minister with an interim report for the 6-month period from 1 July to 31 December on the detail of the authorisations.

We would like to thank the many individuals and organisations who have provided submissions on this bill at extremely short notice.

The urgency under which this bill has been considered has also been very challenging for us.
In recommending amendments we have sought to strike a balance between providing for the security of New Zealand- ers and protecting human rights and individual liberty.

New Zealand Labour Party minority view Labour set out to achieve an appropriate balance between powers needed by security agencies to keep New Zealanders safe and neces- sary safeguards to avoid unwarranted intrusion into their privacy and freedoms.

This bill as introduced failed to find this balance.
The process that the Government followed was appalling, pushing through legislation Commentary Countering Terrorist Fighters Legislation Bill 7 with intrusive powers in just over a week with only two days allowed for public submission.

For a bill of this significance, this timeframe was unacceptable.

Labour accepts that new emerging forms of terrorism potentially cre- ate risks for New Zealand.

However, this legislation was hastily introduced and not subject to a full process of public scrutiny.
Labour took the view that the legislation should not go further than is abso- lutely essential to address the issue of any new terrorist threat.

Our views were also borne out by strong submissions from groups such as the Law Society and the Legislation Advisory Committee.

They were also supported by a large number of concerned New Zealanders, often making their first submission to a select commit- tee, who felt strongly about the implications of this legislation and the way it was being rushed through.
On the insistence of Labour, the bill was released to key interested groups earlier than had been planned and at least some opportunity was provided for public submissions.

Nearly 600 submissions were received within two days but it is likely hundreds of others were de- prived of the opportunity because of the short timeframe.

Labour, in a paper to the select committee, pressed for limitations on the increased powers proposed.

The government agreed to adopt these changes.


The powers proposed for the Security Intelligence Service (SIS) will be limited: • The scope of new visual surveillance powers and warrantless surveillance powers will now be restricted to activities related to terrorism rather than the broad scope of the SIS’s activities.

Surveillance without a warrant will now be strictly limited to emergency situations and limited to 24 hours rather than the 48 hours proposed.
Every case of warrantless surveillance, whether they proceed to a full warrant or not, will be referred to the Inspector-Gen- eral of Intelligence and Security for scrutiny.

The SIS will be required to report publicly six-monthly, rather than annually and with more detail, on the use of these powers.

Labour recommended in relation to changes to the Customs and Ex- cise Act 1996, that the Privacy Commissioner’s recommendations should be adopted.
This will place safeguards on the use of the Cus- • • • 8 Countering Terrorist Fighters Legislation Bill Commentary tom’s database to which the SIS and police have been given access and will ensure the involvement of the Privacy Commissioner.

This has been agreed to.

Labour asked for clarification on the amendment being made to the Passports Act 1992.
We sought and gained assurance that New Zealand citizens who have their passports revoked while overseas will be guaranteed the right to return to New Zealand on emergency travel documents.

The government is retaining the increased power to deny an indi- vidual a passport for up to three years.

We were not convinced that this was necessary when passports can be currently withheld for 12 months and this period extended year by year.
Despite the inadequacies of the process this legislation followed, the provisions of the bill are subject to a sunset clause.

The powers it contains will be comprehensively reviewed next year.

We pressed for and achieved a reduction in the term of the sunset clause from 1 April 2018 to 1 April 2017.

This means the legislation will be replaced within this parliamentary term.
As a result of the evidence we heard, we believe that in the forth- coming review the powers of the Inspector General of Intelligence should be strengthened and made more independent.

Green Party minority view The Green Party opposes this bill.

The primary case for the legisla- tion has not been made, the political foundation for the legislation is weak, and the drafting of the legislation is flawed.

United Nations concern over terrorism is not new.


In 1972 the Gen- eral Assembly invited States to take appropriate measures at the na- tional level for the speedy and final elimination of international ter- rorism.

Concerns over the 2015 Cricket World Cup cannot be higher than those stemming from the Munich Olympics.

Yet New Zealand did not overreact to resolution 3034 then.
The rise of ISIL in 2014 has raised the threat-level, but the change is not qualitatively differ- ent from before and does not justify expansion of state powers.

It is important not to overreact to the Security Council resolution 2178 today.
In making the political case for the legislation, the Prime Minister has described how our risk and threat profile is changing due to the “rapid Commentary Countering Terrorist Fighters Legislation Bill 9 rise of ISIL” which poses an “immediate threat to national security”.

But New Zealand’s threat-level has been increased from “Very Low” (highly unlikely) to “Low” (“possible but not expected”).

There is cognitive dissonance between the excitable political narrative and the official judgement.
UN Security Council resolution 2178 requires States to ensure that their laws are sufficient to combat the threat, while leaving it to their discretion to judge what those might be “consistent with” inter- national human rights, refugee and humanitarian law.

In calibrating its response, the Government is unduly influenced by its Five-Eyes espionage partners, which have attracted higher threat-levels, and has not had sufficient regard for the other 188 member States.
The case is not made for new intrusive powers for the SIS in response to 2178.

The day the bill was introduced, the independent Inspector-General for Security and Intelligence released a report with findings on ac- tions by the SIS and the Prime Minister’s Office in 2011.
These in- cluded disclosure of incomplete, inaccurate and misleading informa- tion; significant errors in considering media requests; failure to safe- guard political neutrality; lack of trust and confidence with the Leader of the Opposition; and insufficiently rigorous and careful approach in handling security intelligence.

Separately, PMO staff had disclosed information supplied by SIS to the media for political purposes.
The Report recommended that SIS staff be trained in the release of infor- mation and published guidance be developed on their political neu- trality obligations.

It is in the context of these shortcomings and the need for guidance and training of the SIS that the Prime Minister asks the people of New Zealand to accept an expansion of its powers.

The timing of this bill could not, therefore, be less opportune.
There is a need for rectification of these shortcomings, and a consequent restoration of public trust in these institutions, before any such bill could be contemplated, and a sufficient case would still need to be made.

The drafting is flawed.

The bill contains no statement of general pur- pose.

The critical concepts are left undefined.

There is confusion over, or deliberate blurring of, those concepts.
The link from the pol- itical narrative to the bill’s content is illogical, with consequent im- precision in terminology.

This would never be tolerated in criminal 10 Countering Terrorist Fighters Legislation Bill Commentary legislation, and should not appear in legislation with constitutional implications.

The essential source of the legislation (UN Security Council reso- lution 2178) places binding obligations on States to respond to the “growing threat posed by foreign terrorist fighters” (FTFs).
The reso- lution expresses concern that FTFs are being recruited by, and join- ing, “entities”.

The only examples offered of such “entities” are con- fined to three Islamic terrorist groups: ISIL, ANF and AQ.

A “for- eign terrorist fighter” is defined in SCR 2178 but not in the NZ legis- lation, either in the text or even the Explanatory Note.

SCR 2178 seeks also to counter “violent extremism” in order to prevent terrorism.

The UN resolution does not define the term.


It nonetheless encourages “relevant local communities and non-gov- ernmental actors” in each country to develop strategies to counter “the violent extremist narrative that can incite terrorist acts”.

The Government is thus utilising the Security Council resolution to ex- pand intrusive powers of warrantless surveillance by the SIS into areas of domestic security.

This is unprecedented for New Zealand.


Thus, in legislation designed to combat “foreign terrorist fighters”, the NZSIS will have power to access customs data and covertly plant cameras anywhere in NZ homes, including without warrant.

The justification is ISIL terrorism in the Middle East; but those powers extend to “local extremists”, including those suspected of planning environmental or economic damage in New Zealand.

This is wrong, and unacceptable.


New Zealand First minority view New Zealand First reserves its position on the bill.

Countering Terrorist Fighters Legislation Bill 11 Commentary Appendix Committee process The Countering Terrorist Fighters Legislation Bill was referred to the committee on 25 November 2014.

The closing date for submissions was 27 November 2014.

We received 588 submissions from inter- ested groups and individuals, and heard 63 of these.
We received advice from the Department of the Prime Minister and Cabinet, the New Zealand Customs Service, the New Zealand Security Intelli- gence Service, and the Parliamentary Counsel Office.
Committee membership Mark Mitchell (Chairperson) David Bennett Hon Phil Goff Dr Kennedy Graham Dr Shane Reti Jami-Lee Ross David Shearer Fletcher Tabuteau Lindsay Tisch Dr Jian Yang Countering Terrorist Fighters Legislation Bill Key to symbols used in reprinted bill As reported from a select committee text inserted by a majority text deleted by a majority Rt Hon John Key Countering Terrorist Fighters Legislation Bill Government Bill Contents Title Commencement Part 1 Amendments to Passports Act 1992 Principal Act New cross-heading and section 45 inserted Application Application of temporary provisions in Schedule Transitional provision 45 46 New Schedule inserted Part 2 Amendments to other enactments Subpart 1—Amendments to Customs and Excise Act 1996 Principal Act New section 280M inserted (Direct access to database information for counter-terrorism investigation purposes) 280M Direct access to database information for counter-terrorism investigation purposes Subpart 2—Amendments to New Zealand Security Intelligence Service Act 1969 Principal Act New cross-headings and sections 4IA to 4IG inserted 1—2 Page 2 2 3 3 3 4 4 4 4 4 6 7 1 cl 1 Countering Terrorist Fighters Legislation Bill 4IA 4IB 4IC 4ID 4IE 4IF Visual surveillance warrants Interpretation Issue of visual surveillance warrant Provisions applying to visual surveillance warrants Situations of emergency or urgency Intelligence warrant or visual surveillance warrant need not be obtained in some situations of emergency or urgency
 Requirements after authorisation under section 4ID(1) given Provisions applying to authorisations under section 4ID(1) Repeals Repeals 4IG Section 4H amended (Prevention or detection of serious crime) Section 5G amended (Exercise of Commissioner’s functions during absence, etc) Section 12A amended (Prohibition on unauthorised disclosure of information) Consequential amendment to Search and Surveillance Act 2012 Consequential amendment to Telecommunications (Interception Capability and Security) Act 2013 Schedule New Schedule inserted 7 7 9 10 12 14 15 15 15 15 16 16 17 The Parliament of New Zealand enacts as follows: Title This Act is the Countering Terrorist Fighters Legislation Act 2014.
Commencement This Act comes into force on 12 December 2014.

5 1 2 2 Countering Terrorist Fighters Legislation Bill Part 1 cl 4 Part 1 Amendments to Passports Act 1992 Principal Act This Part amends the Passports Act 1992 (the principal Act).
New cross-heading and section 45 inserted After section 44, insert: “Application 3 4 “45 Application of temporary provisions in Schedule “(1) The temporary provisions set out in the Schedule apply dur- ing the period— “(a) “(b) beginning on 12 December 2014; and ending with the close of 31 March 2018 2017.
“(2) The temporary provisions have the following effect while they apply: “(a) clause 1 of the Schedule replaces section 4A: “(b) clause 2 of the Schedule replaces section 8A: “(c) clause 3 of the Schedule replaces section 20A: “(d) clause 4 of the Schedule replaces section 25A: “(e) clause 5 of the Schedule replaces section 27B: “(f) clause 6 of the Schedule replaces section 27E: “(g) clauses 7 to 9 of the Schedule supplement the pro- visions set out in the body of this Act.
“(3) “(4) If a temporary provision replaces a provision in the body of this Act, the application of the replaced provision is sus- pended.

If a temporary provision duplicates, modifies, supplements, or is inconsistent with a provision in the body of this Act, the temporary provision prevails.

5 10 15 20 25 “(5) To avoid doubt, sections 28 and 29 apply to clauses 1 to 6 of the Schedule as if those clauses were in Part 1.
30 “(5) To avoid doubt,— “(a) “(b) any replaced provision continues to apply with respect to any relevant matter arising before the commence- ment of this section: any cross-reference in this Act or any other enactment 35 or document to a replaced provision is to be treated as a 3 Part 1 cl 5 Countering Terrorist Fighters Legislation Bill cross-reference to the corresponding replacement pro- vision with respect to any relevant matter arising on or after the commencement of this section: sections 28 and 29 apply to clauses 1 to 6 of the Schedule as if those clauses were in Part 1.
5 “(c) “(6) This section and the Schedule are repealed on 1 April 2018 2017.

“46 Transitional provision “(1) On or after 1 April 2017, any person whose New Zealand travel document was recalled under clause 2, 3, 4, or 6 of the 10 Schedule (as inserted by the Passports Amendment Act 2014) may, 12 months after the date on which that person’s New Zealand travel document was recalled, apply for— “(a) “(b) the return of that New Zealand travel document; or a new New Zealand travel document.
“(2) This section is repealed on 1 April 2018.” 15 5 6 7 New Schedule inserted After section 45 (as inserted by section 4 of this Part), in- sert the Schedule set out in the Schedule of this Act.

Part 2 Amendments to other enactments Subpart 1—Amendments to Customs and Excise Act 1996 20 Principal Act This subpart amends the Customs and Excise Act 1996 (the 25 principal Act).
New section 280M inserted (Direct access to database information for counter-terrorism investigation purposes) After section 280L, insert: “280M Direct access to database information for 30 counter-terrorism investigation purposes “(1) The purpose of this section is to facilitate access by the New Zealand Security Intelligence Service and the New Zealand 4 Countering Terrorist Fighters Legislation Bill Part 2 cl 7 Police, for counter-terrorism investigation purposes, to infor- mation stored in a database.
the Director of Security: “(2) The chief executive may allow the following persons to access a database to search for information, including personal infor- mation, for counter-terrorism investigation purposes: “(a) “(b) 1 or more suitable employees or officers of the New Zealand Security Intelligence Service designated by the Director of Security: the Commissioner of Police: “(c) “(d) 1 or more suitable Police employees designated by the 5 10 Commissioner.
“(3) Before allowing access to a database in accordance with sub- section (2), the chief executive must enter into a written agreement with the Director of Security or the Commissioner 15 of Police (as the case may be).

“(3A) Before entering into a written agreement under subsection (3), the chief executive must consult with the Privacy Com- missioner.
“(4) The Director of Security and the Commissioner of Police must 20 take all reasonable steps to ensure that— “(a) a record is kept of— “(i) every occasion on which persons access a database; and “(ii) the reason for accessing the database; and “(iii) the identity of the person who accessed the database; and “(b) every person who accesses a database— “(i) searches only for information for counter-terror- ism investigation purposes; and complies with the terms of the written agreement referred to in subsection (3).
“(ii) 25 30 “(5) In this section,— “access a database includes remote access to a database “counter-terrorism investigation purposes means the detec- 35 tion, investigation, and prevention of any actual, potential, or suspected— “(a) terrorist act; or 5 Part 2 cl 8 Countering Terrorist Fighters Legislation Bill facilitation of a terrorist act “(b) “database means any information recording system used by the Customs to store information “Director of Security means the Director of Security holding office under the New Zealand Security Intelligence Service 5 Act 1969 “information— “(a) means— “(i) any information held by the Customs that relates to goods, passengers, crew, or craft and their 10 movements: any other border-related information held by the Customs; and “(ii) “(b) includes, but is not limited to,— “(i) “(ii) arrival and departure information: information collected by the Customs under Part 3A: information the Customs is entitled to view under any of sections 38G to 38K: “(ii) “(iii) information specified in section 282(1): “(iv) border information (as defined in section 282D): information collected or generated by the Cus- “(v) toms in the course of preventing, detecting, or in- vestigating border-related offences; but 15 20 “(c) except as provided in paragraph (b)(i) and (iii) to (iv), 25 does not include information which the Customs is not entitled to view under sections 38G to 38K “terrorist act has the same meaning as in section 5(1) of the Terrorism Suppression Act 2002.
“(6) This section is repealed on 1 April 20182017.” 30 Subpart 2—Amendments to New Zealand Security Intelligence Service Act 1969 Principal Act This subpart amends the New Zealand Security Intelligence Service Act 1969 (the principal Act).
35 8 6 Countering Terrorist Fighters Legislation Bill Part 2 cl 9 9 New cross-headings and sections 4IA to 4IG inserted After section 4I, insert: “Visual surveillance warrants “4IA Interpretation In sections 4IB to 4IF,— “Inspector-General means the Inspector-General under the Inspector-General of Intelligence and Security Act 1996 “visual surveillance means the observation of private activity in private premises, with or without the use of a visual surveil- lance device, and includes any recording of that observation “visual surveillance device has the same meaning as in sec- tion 3(1) of the Search and Surveillance Act 2012 “visual surveillance warrant means a domestic visual surveillance warrant issued under section 4IB(1) or a foreign visual surveillance warrant issued under section 4IB(2).
5 10 15 “4IB Issue of visual surveillance warrant “(1) The Minister and the Commissioner may jointly issue a do- mestic visual surveillance warrant authorising a person to undertake visual surveillance if the Minister and the Com- missioner are both satisfied on evidence on oath given by the 20 applicant for the warrant that the conditions specified in sub- section (3) apply to the proposed warrant.
“(2) The Minister may issue a foreign visual surveillance warrant authorising a person to undertake visual surveillance if the Minister is satisfied on evidence on oath given by the appli- 25 cant for the warrant that— “(a) the conditions specified in subsection (3) apply to the proposed warrant; and there are reasonable grounds for believing— “(i) that no New Zealand citizen or permanent resi- 30 dent is to be identified by the proposed warrant as a person who is to be subject to the warrant; and that any place to be specified in the proposed warrant is occupied by a foreign organisation or a foreign person.
35 “(ii) “(b) “(3) The conditions referred to in subsections (1) and (2) are that— 7 Part 2 cl 9 “(a) Countering Terrorist Fighters Legislation Bill the visual surveillance to be authorised by the proposed warrant is necessary— “(i) for the detection of activities prejudicial to secur- ity; or for the purpose of gathering foreign intelligence 5 information that is essential to security; and “(ii) 10 “(c) “(b) terrorist act; or facilitation of a terrorist act; and “(aa) the visual surveillance to be authorised by the proposed warrant is necessary for the detection, investigation, or prevention of any actual, potential, or suspected— “(i) “(ii) the value of the information sought to be obtained under the proposed warrant justifies the visual surveillance; and the information is not likely to be obtained by any other 15 means; and any recording of activity that is sought to be obtained under the proposed warrant is not privileged in proceed- ings in a court of law under— “(i) “(ii) section 58 or 59 of the Evidence Act 2006; or any rule of law that confers privilege on com- munications of a professional nature between a lawyer and his or her client.
“(d) 20 “(4) Every visual surveillance warrant must specify— “(a) “(b) the identity of the person to be observed: the place, facility, or thing to be observed.

“(5) A visual surveillance warrant may be issued only on an appli- cation made in writing by the Director or by the person for the time being acting as the Director.
25 “(6) A combined application for both a visual surveillance warrant 30 and an intelligence warrant may be made, in which case the Minister and the Commissioner (in the case of a domestic war- rant), or the Minister (in the case of a foreign warrant), may issue— “(a) “(b) “(c) a visual surveillance warrant only; or an intelligence warrant only; or both.
35 “(7) Before issuing a visual surveillance warrant in respect of any matter specified in paragraph (b) of the definition of security in 8 Countering Terrorist Fighters Legislation Bill Part 2 cl 9 section 2(1), the Minister must consult the Minister of Foreign Affairs about the proposed warrant.

“(8) The expiry of a visual surveillance warrant does not prevent a further application under subsection (1) or (2) in respect of the same subject matter.
5 “(9) Subsections (1) to (8) have effect despite anything to the contrary in any other Act.

“(9A) As soon as practicable after a visual surveillance warrant is issued under subsection (1), the Director (or the person for the time being acting as the Director) must provide a copy of 10 the visual surveillance warrant to the Inspector-General.
“(10) As soon as practicable after the expiry of a visual surveil- lance warrant, the Director must ensure that any records result- ing from the visual surveillance undertaken under that warrant are destroyed, except to the extent that those records are rele- 15 vant— “(a) “(b) to the detection of activities prejudicial to security; or to the gathering of foreign intelligence information that is essential to security.
“(11) Every person who knowingly fails to comply with subsec- 20 tion (10) commits an offence and is liable on conviction to a fine not exceeding $1,000$10,000.
“4IC Provisions applying to visual surveillance warrants “(1) The following provisions apply, with any necessary modifica- tions, as if references to an intelligence warrant or a warrant in 25 those provisions were references to a visual surveillance war- rant: “(a) section 4A(6) to (8) (which confers immunities on per- sons giving effect to warrants): section 4B(2) to (5) (which allows the Minister and the 30 Commissioner to impose terms and conditions in the public interest or to minimise the impact on third par- ties): section 4C (which relates to the term of a warrant): section 4D (which empowers the Director or a delegate 35 of the Director to give effect to a warrant and to request third parties to assist): “(b) “(c) “(d) 9 Part 2 cl 9 Countering Terrorist Fighters Legislation Bill “(e) “(f) “(g) “(h) “(i) “(j) “(k) section 4E (which provides powers to persons acting under warrants): section 4F (which imposes a duty to minimise the im- pact of a warrant on third parties): section 4I (which enables the Minister to issue a warrant 5 for the removal of equipment installed under a warrant): section 4K (which requires the Director to include infor- mation in every annual report on the warrants in force during the relevant reporting period): section 4L (which requires the Minister to certify that 10 the information on warrants in the annual report is cor- rect): section 5AA (which permits the Director to delegate certain functions or powers relating to warrants, but not the function involved in applying for a warrant): section 5AAC (which requires delegations involving the execution of warrants to be entered in a register).
15 “(2) The immunities referred to in subsection (1)(a) have effect despite anything to the contrary in any other Act.
“Situations of emergency or urgency 20 “4ID Intelligence warrant or visual surveillance warrant need not be obtained in some situations of emergency or urgency “(1) The Director (or the person for the time being acting as the Director) may authorise a person to exercise a power specified 25 in subsection (2) without an intelligence warrant or a visual surveillance warrant if the Director (or the person acting as the Director) is satisfied— “(aa) that the exercise of the power is necessary for the detec- terrorist act; or facilitation of a terrorist act; and tion, investigation, or prevention of any actual, poten- 30 tial, or suspected— “(i) “(ii) the Director (or the person acting as the Director) is satisfied that,— “(i) in the case of an intelligence warrant, the condi- tions set out in section 4A(3)(b) to (d) apply; or 35 “(a) 10 Countering Terrorist Fighters Legislation Bill Part 2 cl 9 “(ii) in the case of a visual surveillance warrant, the conditions set out in section 4IB(3)(b) to (d) apply; and “(b) that obtaining an intelligence warrant or a visual surveillance warrant within the time in which it is pro- 5 posed to exercise the power is impracticable in the circumstances and a delay is likely to result in a loss of intelligence.
“(2) The powers are the power to,— “(a) in relation to an intelligence warrant,— “(i) intercept or seize any communication, document, or thing not otherwise lawfully obtainable by the person: 10 “(b) “(ii) undertake electronic tracking: in relation to a visual surveillance warrant, undertake 15 visual surveillance.

“(3) An authorisation under subsection (1) is valid for a period not exceeding 4824 hours that is specified by the person giving the authorisation.
“(4) On the expiry of an authorisation under subsection (1), no 20 further application may be made for an authorisation under subsection (1), in respect of the same subject matter.
“(5) An authorisation under subsection (1) may contain any terms and conditions that the Director (or the person for the time being acting as the Director) considers advisable— “(a) “(b) in the public interest; or to minimise any risk that the warrant may affect third parties, if, in the opinion of the Director (or the person for the time being acting as the Director), that risk is significant because of— “(i) 25 the name, alias, or other description of the per- son whose communications are sought to be in- tercepted; or the nature of the place or the facility in respect of which communications may be intercepted.
“(ii) 30 35 “(6) Subsections (1) to (4) have effect despite anything to the contrary in any other Act.
11 Part 2 cl 9 Countering Terrorist Fighters Legislation Bill “4IE Requirements after authorisation under section 4ID(1) given “(1) As soon as practicable, and no later than 12 hours,Immediately after an authorisation is given under section 4ID(1), the Dir- ector (or the person for the time being acting as the Director) 5 must advise the following persons of the authorisation: “(a) “(b) “(c) the Minister; and the Inspector-General; and if the authorisation is to exercise a power that would otherwise be required to be exercised under a domestic 10 intelligence warrant or a domestic visual surveillance warrant, the Commissioner.
; and if the authorisation relates to any matter specified in paragraph (b) of the definition of security in section 2(1), the Minister of Foreign Affairs.

“(d) 15 “(2) When the Minister or the Commissioner is advised under sub- section (1) of an authorisation, the Minister or the Commis- sioner may direct every person acting under the authorisa- tion— “(a) not to proceed with, or to discontinue, any or all activity 20 under the authorisation: to destroy any or all of the information collected.
“(b) “(3) The Director (or the person for the time being acting as the Director) must ensure that every direction under subsection (2) is carried out without delay.

25 “(3A) As soon as practicable after the Minister or the Commissioner issues a direction under subsection (2), the Director (or the person for the time being acting as the Director) must refer the matter to the Inspector-General for investigation.
“(4) As soon as practicable after the expiry of an authorisation 30 under section 4ID(1), if no application has been made for an intelligence warrant or a visual surveillance warrant in relation to the same subject matter, the Director (or the person for the time being acting as the Director) must provide a report— “(a) “(b) to the Minister; or if the authorisation was to exercise a power that would otherwise be required to be exercised under a domestic intelligence warrant or a domestic visual surveillance warrant, to the Minister and the Commissioner.
35 12 Countering Terrorist Fighters Legislation Bill Part 2 cl 9 “(5) A report under subsection (4) must include the following information: “(a) “(b) “(c) the reason why the authorisation was given; and the reason why no application for a warrant was made; and the nature of the information collected under the author- isation.
5 “(6) After receiving a report under subsection (4) the Minister, or the Minister and the Commissioner jointly (as the case may be), must determine whether it was appropriate for that author- 10 isation to have been given and, if not, refer the matter to the Inspector-General for investigation.
“(6) As soon as practicable after receiving a report under subsection (4), the Minister (in the case of an authorisation to exercise a power that would otherwise be required to be 15 exercised under a foreign intelligence warrant or a foreign visual surveillance warrant) or the Minister and the Commis- sioner (in the case of an authorisation to exercise a power that would otherwise be required to be exercised under a do- mestic intelligence warrant or a domestic visual surveillance 20 warrant) must— “(a) determine whether it was appropriate for that authorisa- tion to have been given; and refer the matter to the Inspector-General for investiga- tion.
“(b) “(6A) If an authorisation under section 4ID(1) is followed by an application for a visual surveillance warrant or an intelligence warrant in relation to the same subject matter, and that appli- cation is refused, the Director must refer the matter to the In- spector-General for investigation.
“(7) As soon as practicable after the expiry of an authorisation under section 4ID(1), if no warrant is issued in relation to the same subject matter, the Minister must ensure that any records resulting from activities undertaken pursuant to that authorisa- tion are destroyed, except to the extent that those records are 35 relevant— “(a) “(b) to the detection of activities prejudicial to security; or to the gathering of foreign intelligence information that is essential to security.
13 25 30 Part 2 cl 9 Countering Terrorist Fighters Legislation Bill “(7A) As soon as practicable after a decision is made to retain records under subsection (7)(a) or (b), the Minister must refer the matter to the Inspector-General for investigation.

“(8) Every person who knowingly fails to comply with subsec- tion (7) commits an offence and is liable on conviction to a 5 fine not exceeding $1,000$10,000.
“(9) The Director must include in every annual report prepared under section 4J a statement, in relation to the reporting period to which the report relates, of— “(a) the number of authorisations given under section 10 4ID(1): “(b) how many of those authorisations were to exercise powers that would otherwise be required to be exer- cised under— intelligence warrants: “(i) “(ii) visual surveillance warrants: “(ba) the length of time, expressed in 12-hour bands, that those authorisations remained in force before expiring or being replaced by an intelligence warrant or a visual surveillance warrant: how many of those authorisations were followed by an application for an intelligence warrant or a visual surveillance warrant in relation to the same subject mat- ter: “(c) 15 20 “(d) how many determinations were made under subsec- 25 tion (6) that it was not appropriate for an authorisation under section 4ID(1) to have been given.
“(10) As soon as practicable after each year ending on 31 Decem- ber, the Director must deliver to the Minister an interim report of the matters in subsection (9)(a) to (d) in relation to the 30 6-month period from 1 July to 31 December.

“(11) Section 4J(2) to (4) (except section 4J(3)(b)) applies to an in- terim report under subsection (10).
“4IF Provisions applying to authorisations under section 4ID(1) “(1) The following provisions apply, with any necessary modifica- 35 tions, to an authorisation under section 4ID(1) as if references to an intelligence warrant or a warrant in those provisions were references to an authorisation under section 4ID(1): 14 Countering Terrorist Fighters Legislation Bill Part 2 cl 12 “(c) “(a) “(b) section 4A(6) to (8) (which confers immunities on per- sons giving effect to warrants): section 4D (which empowers the Director or a delegate of the Director to give effect to a warrant and to request third parties to assist): section 4E (which provides powers to persons acting under warrants): section 4F(1) and (2) (which imposes a duty to minimise the impact of a warrant on third parties): section 4I (which enables the Minister to issue a warrant 10 for the removal of equipment installed under a warrant).
“(2) The immunities conferred under subsection (1)(a) have ef- fect despite anything to the contrary in any other Act.

“(d) “(e) 5 “Repeals “4IG Repeals 15 Sections 4IA to 4IF and this section are repealed on 1 April 20182017.” 10 11 12 (1) (2) Section 4H amended (Prevention or detection of serious crime) In section 4H(1), replace “sections 4(1)(a) and 4G(1)(a),” with 20 “sections 4(1)(a), 4IB(10), 4IE(7), 4G(1)(a), and 4G(2A),”.
Section 5G amended (Exercise of Commissioner’s functions during absence, etc) In section 5G(2), replace “sections 4A and 4F” with “sections 4A, 4F, 4IB, and 4ID”.

Section 12A amended (Prohibition on unauthorised disclosure of information) In section 12A(2), replace “intelligence warrant” with “intel- ligence warrant, visual surveillance warrant, or authorisation under section 4ID(1)”.
In section 12A(3), replace “intelligence warrant” with “intel- ligence warrant, visual surveillance warrant, or authorisation under section 4ID(1)”.

25 30 15 Part 2 cl 13 Countering Terrorist Fighters Legislation Bill Consequential amendment to Search and Surveillance Act 2012 This section amends the Search and Surveillance Act 2012.

In section 47(1)(c)(i), replace “section 4A(1) or (2)” with “sec- tion 4A(1) or (2), 4IB(1) or (2), or 4ID(1)”.
5 Consequential amendment to Telecommunications (Interception Capability and Security) Act 2013 This section amends the Telecommunications (Interception Capability and Security) Act 2013.

In section 3(1), definition of interception warrant, paragraph 10 (b), replace “section 4A(1) or (2)” with “section 4A(1) or (2), 4IB(1) or (2), or 4ID(1)”.
13 (1) (2) 14 (1) (2) 16 1 (1) (2) Countering Terrorist Fighters Legislation Bill Schedule New Schedule inserted Schedule Temporary provisions Schedule s 5 s 45 Refusal to issue passport on grounds of national security The Minister may refuse to issue a New Zealand passport to a person if the Minister believes on reasonable grounds that— 5 (a) (ii) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— a terrorist act within the meaning of section 5 of (i) the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; 10 or any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and (iii) 15 (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the refusal to issue a passport will prevent or effectively impede the ability of the person to carry out the intended action.
20 The Minister may also refuse to issue a New Zealand pass- port to a person if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of a country other than New Zealand because the person intends to engage 25 in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; and (ii) (b) (c) the danger to the security of that country cannot be ef- fectively averted by other means; and the refusal to issue a passport will prevent or effectively impede the ability of the person to carry out the intended action.
17 30 35 Schedule Countering Terrorist Fighters Legislation Bill (3) (4) To avoid doubt, the Minister may refuse to issue a New Zealand passport to a person who is outside New Zealand.
If the Minister refuses to issue a passport under this clause,— the Minister must notify the person in writing of the (a) refusal, and the reasons for it; and the person is not entitled to obtain a New Zealand pass- port during the 12-month period starting with the date of the decision, unless the Minister’s decision under this clause is revoked by the Minister or by a court.
(b) (5) Despite subclause (4)(a),— (a) (b) the Minister may defer notifying the person for a period not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at risk: notice is to be treated as given if the Minister has taken all practicable steps to provide it.
5 10 15 (6) Despite subclause (4)(b), the Minister may specify a longer period in the notice, not exceeding 36 months, if the Minister is satisfied that the person would continue to pose a danger to 20 New Zealand or any other country.
If the period exceeds 12 months,— (a) (7) (b) the person may, within 30 days after the date on which the notice was issued, make a written submission to the Minister about the length of the period and, if a submis- 25 sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review the decision by— (i) 30 inviting the person to make a written submission to the Minister about the decision; and determining whether the decision should be re- voked, having regard to the person’s submission (if any).
(ii) 35 The Minister may, at any time before the expiry of the period referred to in subclause (4)(b) or (6), apply to a Judge of the High Court for an order to extend for a further period not (8) 18 (9) 2 (1) (2) Countering Terrorist Fighters Legislation Bill Schedule exceeding 12 months the period during which the person is not entitled to obtain a New Zealand passport.
The Judge must make the order applied for if satisfied that— the information presented in support of the application (a) is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- clause (1) or (2) still applies in relation to the person concerned.
(b) 5 Cancellation of passport on grounds of national security The Minister may, by notice in writing, recall any New 10 Zealand passport, and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— (i) (ii) (iii) a terrorist act within the meaning of section 5 of 15 the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; or any unlawful activity designed or likely to cause devastating or serious economic damage to New 20 Zealand, carried out for purposes of commercial or economic gain; and (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the cancellation of the passport, or its retention by the 25 Minister, will prevent or effectively impede the ability of the person to carry out the intended action.
The Minister may also, by notice in writing, recall any New Zealand passport, and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of a country other than New Zealand because the person intends to engage in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; and (ii) 30 35 19 (3) (4) Schedule Countering Terrorist Fighters Legislation Bill (b) (c) the danger to the security of that country cannot be ef- fectively averted by other means; and the cancellation of the passport, or its retention by the Minister, will prevent or effectively impede the ability of the person to carry out the intended action.
5 10 To avoid doubt, the Minister may recall, cancel, or retain pos- session of a New Zealand passport for a person who is outside New Zealand.
If the Minister cancels or retains possession of a passport under this clause,— (a) the Minister must notify the person in writing of the cancellation or retention, and the reasons for it; and the person is not entitled to obtain that passport or an- other New Zealand passport during the 12-month period starting with the date of the decision, unless the Minis- 15 ter’s decision under this clause is revoked by the Min- ister or by a court.
(b) (5) Despite subclause (4)(a),— (a) (b) the Minister may defer notifying the person for a period not exceeding 30 days if the Minister is satisfied that 20 giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at risk: notice is to be treated as given if the Minister has taken all practicable steps to provide it.
25 (6) Despite subclause (4)(b), the Minister may specify a longer period in the notice, not exceeding 36 months, if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country.
If the period exceeds 12 months,— (a) (7) the person may, within 30 days after the date on which the notice was issued, make a written submission to the Minister about the length of the period and, if a submis- sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review the decision by— (b) 20 30 35 (8) (9) 3 (1) Countering Terrorist Fighters Legislation Bill Schedule (i) (ii) inviting the person to make a written submission to the Minister about the decision; and determining whether the decision should be re- voked, having regard to the person’s submission (if any).
5 The Minister may, at any time before the expiry of the period referred to in subclause (4)(b) or (6), apply to a Judge of the High Court for an order to extend for a further period not ex- ceeding 12 months the period during which the person is not entitled to obtain the passport or another New Zealand pass- 10 port.
The Judge must make the order applied for if satisfied that— the information presented in support of the application (a) is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- 15 clause (1) or (2) still applies in relation to the person concerned.
(b) Cancellation of certificate of identity on grounds of national security The Minister may, by notice in writing, recall any certificate 20 of identity issued to any person by or on behalf of the New Zealand Government, and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) (ii) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— 25 a terrorist act within the meaning of section 5 of (i) the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; or any unlawful activity designed or likely to cause 30 devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and (iii) (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the cancellation of the certificate of identity, or its reten- tion by the Minister, will prevent or effectively impede the ability of the person to carry out the intended action.
35 21 Schedule Countering Terrorist Fighters Legislation Bill (2) (3) (4) The Minister may also, by notice in writing, recall any certifi- cate of identity issued to any person by or on behalf of the New Zealand Government, and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of a country other 5 than New Zealand because the person intends to engage in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; 10 and (ii) (c) (b) the danger to the security of that country cannot be ef- fectively averted by other means; and the cancellation of the certificate of identity, or its reten- tion by the Minister, will prevent or effectively impede 15 the ability of the person to carry out the intended action.
To avoid doubt, the Minister may recall, cancel, or retain pos- session of a certificate of identity for a person who is outside New Zealand.
If the Minister cancels or retains possession of a certificate of 20 identity under this clause,— (a) the Minister must notify the person in writing of the cancellation or retention, and the reasons for it; and the person is not entitled to obtain that certificate of identity or another New Zealand travel document dur- 25 ing the 12-month period starting with the date of the de- cision, unless the Minister’s decision under this clause is revoked by the Minister or by a court.
(b) (5) Despite subclause (4)(a),— (a) (b) the Minister may defer notifying the person for a period 30 not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at risk: notice is to be treated as given if the Minister has taken 35 all practicable steps to provide it.
(6) Despite subclause (4)(b), the Minister may specify a longer period in the notice, not exceeding 36 months, if the Minister 22 (7) (8) (9) 4 (1) Countering Terrorist Fighters Legislation Bill Schedule is satisfied that the person would continue to pose a danger to New Zealand or any other country.
If the period exceeds 12 months,— (a) the person may, within 30 days after the date on which the notice was issued, make a written submission to the 5 Minister about the length of the period and, if a submis- sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review 10 the decision by— (i) inviting the person to make a written submission to the Minister about the decision; and determining whether the decision should be re- voked, having regard to the person’s submission 15 (if any).
(ii) (b) The Minister may, at any time before the expiry of the period referred to in subclause (4)(b) or (6), apply to a Judge of the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is 20 not entitled to obtain the certificate of identity or another New Zealand travel document.
The Judge must make the order applied for if satisfied that— the information presented in support of the application (a) is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- clause (1) or (2) still applies in relation to the person concerned.
(b) 25 Cancellation of emergency travel document on grounds of national security The Minister may, by notice in writing, recall any emergency travel document issued to any person (other than a jour- ney-specific emergency travel document issued under section 23(3)), and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— 30 35 23 Schedule Countering Terrorist Fighters Legislation Bill (i) (ii) (iii) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; or any unlawful activity designed or likely to cause 5 devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the cancellation of the emergency travel document, or its retention by the Minister, will prevent or effectively impede the ability of the person to carry out the intended action.
10 The Minister may also, by notice in writing, recall any emer- 15 gency travel document issued to any person (other than a jour- ney-specific emergency travel document issued under section 23(3)), and cancel it or retain possession of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of a country other 20 than New Zealand because the person intends to engage in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; 25 and (ii) (b) (c) the danger to the security of that country cannot be ef- fectively averted by other means; and the cancellation of the emergency travel document, or its retention by the Minister, will prevent or effectively 30 impede the ability of the person to carry out the intended action.
To avoid doubt, the Minister may recall, cancel, or retain pos- session of an emergency travel document for a person who is outside New Zealand.
If the Minister cancels or retains possession of an emergency travel document under this clause,— (a) the Minister must notify the person in writing of the cancellation or retention, and the reasons for it; and 35 (2) (3) (4) 24 Countering Terrorist Fighters Legislation Bill Schedule (b) the person is not entitled to obtain that emergency travel document or another New Zealand travel document (other than a journey-specific emergency travel docu- ment issued under section 23(3)) during the 12-month period starting with the date of the decision, unless the 5 Minister’s decision under this clause is revoked by the Minister or by a court.
(5) Despite subclause (4)(a),— (a) (b) the Minister may defer notifying the person for a period not exceeding 30 days if the Minister is satisfied that 10 giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at risk: notice is to be treated as given if the Minister has taken all practicable steps to provide it.
15 (6) Despite subclause (4)(b), the Minister may specify a longer period in the notice, not exceeding 36 months, if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country.
If the period exceeds 12 months,— (a) (7) (b) the person may, within 30 days after the date on which the notice was issued, make a written submission to the Minister about the length of the period and, if a submis- sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review the decision by— (i) inviting the person to make a written submission to the Minister about the decision; and determining whether the decision should be re- voked, having regard to the person’s submission (if any).
(ii) 20 25 30 (8) The Minister may, at any time before the expiry of the period referred to in subclause (4)(b) or (6), apply to a Judge of 35 the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is not entitled to obtain the emergency travel document or another New Zealand travel document.
25 Schedule Countering Terrorist Fighters Legislation Bill The Judge must make the order applied for if satisfied that— the information presented in support of the application (a) is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- clause (1) or (2) still applies in relation to the person 5 concerned.
(b) Refusal to issue refugee travel document on grounds of national security The Minister may refuse to issue a New Zealand refugee travel document to a person if the Minister believes on reasonable 10 grounds that— (a) (ii) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— a terrorist act within the meaning of section 5 of (i) the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; or any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial 20 or economic gain; and (iii) 15 (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the refusal to issue a refugee travel document will pre- vent or effectively impede the ability of the person to 25 carry out the intended action.
The Minister may also refuse to issue a New Zealand refugee travel document to a person if the Minister believes on reason- able grounds that— (a) the person is a danger to the security of a country other 30 than New Zealand because the person intends to engage in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; 35 and (ii) (b) the danger to the security of that country cannot be ef- fectively averted by other means; and (9) 5 (1) (2) 26 Countering Terrorist Fighters Legislation Bill Schedule (c) the refusal to issue a refugee travel document will pre- vent or effectively impede the ability of the person to carry out the intended action.
(3) (4) To avoid doubt, the Minister may refuse to issue a New Zealand refugee travel document to a person who is outside 5 New Zealand.
If the Minister refuses to issue a New Zealand refugee travel document under this clause,— (a) (b) the Minister must notify the person in writing of the refusal, and the reasons for it; and the person is not entitled to obtain a New Zealand refugee travel document during the 12-month period starting with the date of the decision, unless the Min- ister’s decision under this clause is revoked by the Minister or by a court.
(5) Despite subclause (4)(a),— 10 15 (a) (b) the Minister may defer notifying the person for a period not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at 20 risk: notice is to be treated as given if the Minister has taken all practicable steps to provide it.
(6) Despite subclause (4)(b), the Minister may specify a longer (7) period in the notice, not exceeding 36 months, if the Minister 25 is satisfied that the person would continue to pose a danger to New Zealand or any other country.
If the period exceeds 12 months,— (a) the person may, within 30 days after the date on which the notice was issued, make a written submission to the 30 Minister about the length of the period and, if a submis- sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review 35 the decision by— (i) inviting the person to make a written submission to the Minister about the decision; and (b) 27 Schedule Countering Terrorist Fighters Legislation Bill (ii) determining whether the decision should be re- voked, having regard to the person’s submission (if any).
The Minister may, at any time before the expiry of the period referred to in subclause (4)(b) or (6), apply to a Judge of 5 the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is not entitled to obtain a New Zealand refugee travel document.
The Judge must make the order applied for if satisfied that— (a) the information presented in support of the application 10 is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- clause (1) or (2) still applies in relation to the person concerned.
(b) Cancellation of refugee travel document on grounds of national security The Minister may, by notice in writing, recall any New Zealand refugee travel document, and cancel it or retain pos- session of it, if the Minister believes on reasonable grounds that— (a) 15 20 (ii) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,— a terrorist act within the meaning of section 5 of (i) the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; 25 or any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and (iii) 30 (b) (c) the danger to the security of New Zealand cannot be effectively averted by other means; and the cancellation of the New Zealand refugee travel document, or its retention by the Minister, will prevent or effectively impede the ability of the person to carry 35 out the intended action.
The Minister may also, by notice in writing, recall any New Zealand refugee travel document, and cancel it or retain pos- (8) (9) 6 (1) (2) 28 Countering Terrorist Fighters Legislation Bill Schedule session of it, if the Minister believes on reasonable grounds that— (a) the person is a danger to the security of a country other than New Zealand because the person intends to engage in, or facilitate,— (i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or the proliferation of weapons of mass destruction; and (ii) 5 (b) (c) the danger to the security of that country cannot be ef- 10 fectively averted by other means; and the cancellation of the New Zealand refugee travel document, or its retention by the Minister, will prevent or effectively impede the ability of the person to carry out the intended action.
15 (b) (3) If the Minister cancels or retains possession of a New Zealand refugee travel document under this section,— (a) the Minister must notify the person in writing of the cancellation or retention, and the reasons for it; and the person is not entitled to obtain that New Zealand 20 refugee travel document or another New Zealand refugee travel document during the 12-month period starting with the date of the decision, unless the Min- ister’s decision under this section is revoked by the Minister or by a court.
(4) Despite subclause (3)(a),— 25 (a) (b) the Minister may defer notifying the person for a period not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing inves- tigation or put the security or safety of any person at 30 risk: notice is to be treated as given if the Minister has taken all practicable steps to provide it.
(5) Despite subclause (3)(b), the Minister may specify a longer period in the notice, not exceeding 36 months, if the Minister 35 is satisfied that the person would continue to pose a danger to New Zealand or any other country.
If the period exceeds 12 months,— (6) 29 Schedule Countering Terrorist Fighters Legislation Bill (a) (b) the person may, within 30 days after the date on which the notice was issued, make a written submission to the Minister about the length of the period and, if a submis- sion is made, the Minister must review the length of the period, having regard to the person’s submission; and the Minister must, every 12 months after the date on which the notice was issued (if yet to expire), review the decision by— (i) inviting the person to make a written submission to the Minister about the decision; and determining whether the decision should be re- voked, having regard to the person’s submission (if any).
(ii) 5 10 (7) (8) The Minister may, at any time before the expiry of the period referred to in subclause (3)(b) or (5), apply to a Judge of 15 the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is not entitled to obtain the New Zealand refugee travel document or another New Zealand refugee travel document.
The Judge must make the order applied for if satisfied that— 20 the information presented in support of the application (a) is credible, having regard to its source or sources; and the information reasonably supports a finding that sub- clause (1) or (2) still applies in relation to the person concerned.

(b) 25 (9) Nothing in this section authorises the Minister to cancel a New Zealand refugee travel document at a time when its holder is outside New Zealand.
Temporary suspension of New Zealand travel documents The Minister may suspend a person’s New Zealand travel 30 document for a period not exceeding 10 working days if the Minister is satisfied that— (a) a report is, in respect of clause 2, 3, 4, or 6, being prepared regarding the danger that the person presents to the security of New Zealand or another country; and 35 the person is likely to travel before the report is pre- pared.
(b) 7 (1) 30 (2) 8 (1) Countering Terrorist Fighters Legislation Bill Schedule If, during the preparation of the report, it becomes apparent that the grounds for cancellation (as specified in clause 2, 3, 4, or 6) cannot be established,— (a) (b) the Minister must be notified immediately; and the suspension lapses when the Minister is notified.
5 Proceedings where national security involved Sections 29AA to 29AC also apply to— (a) any application for judicial review of a decision made under clause 1, 2, 3, 4, 5, 6, or 7; and any other proceedings that challenge a decision made 10 under this Act that involves matters of security.
(b) (2) With respect to section 29AA, if a decision, which may be made at any time, is made to withdraw any classified security information,— (a) the classified security information— (i) must be kept confidential and must not be dis- closed by the court; and (b) (ii) must be returned to the relevant agency; and the court must continue to make the decision or deter- mine the proceedings— (i) without regard to that classified security informa- tion; and in the case of an appeal or a review of proceed- ings, as if that information had not been available in making the decision subject to the appeal or re- 25 view.
(ii) 15 20 Compare: 2009 No 51 s 37(4), (5) 9 (1) Limitation of Crown liability This clause applies to any decision made under clause 1, 2, 3, 4, 5, 6, or 7.
30 31 Countering Terrorist Fighters Legislation Bill (2) The Crown is not liable to any person for any loss or dam- age as a result of, or in connection with, a decision referred to in subclause (1) unless the person or persons taking those actions, or any employee of the Crown performing any func- tion directly or indirectly connected with those actions, has not 5 acted in good faith or has been grossly negligent.
Compare: 1996 No 27 s 280E(1), (2) Legislative history 25 November 2014 Introduction (Bill 1–1), first reading and referral to Foreign Affairs, Defence and Trade Committee 12 32 Published under the authority of the House of Representatives—2014 Wellington, New Zealand: