Parker DavidHon DAVID PARKER (Labour): Part 4 of this bill to me is actually the most important part of this bill. This is the part that confers but constrains the power of spy agencies to get warrants that affect New Zealanders and others. This is probably the most controversial part of the bill and I want to talk a little about it.There are some changes that have been made to the version that went to the Foreign Affairs Defence and Trade Committee which I will come to. But before I do that there are essentially two types of categories of warrants that can be obtained against New Zealanders both of which are constrained. The first is when New Zealanders are acting as the agent of a foreign power. This is found in clause 55B and applies when there are matters that are affecting international relations or the economic well-being of New Zealand. That is not enough. The person against whom a warrant is being sought has to be either acting or purporting to act on behalf of a foreign person a foreign organisation or a designated terrorist entity. That is not particularly new language. There are equivalents to that in the current legislation in relation to the agencies and it will only apply when a New Zealander is acting as an agent of a foreign power.We should be aware that a foreign organisation can include a foreign corporate. So if there was a multinational acting in New Zealand there is the potential for that to apply here. It would be a foreign organisation in terms of this bill and if a New Zealander was working for that organisation and it was something that was a matter relating to international relations and the well-being of New Zealand or the economic well-being of New Zealand then it could apply for a warrant against a New Zealander.The more important if I could say it that way part of the powers against a New Zealander lies in clause 55A. This has as a precondition that the matter has to be necessary to contribute to the protection of national security and fall within a series of alternatives like terrorism or espionage. I want to explain the evolution of that at select committee. The original form of the way in which this was cast in the bill that went to the select committee was as recommended by the Cullen-Reddy report but officials had identified that that might not be the best approach even at the time it was referred to the select committee and had said to submitters and others to perhaps consider another approach.At select committee we learnt that the problem with the approach which attempted to define national security was that there were things that were covered and you could get warrants for them that ought not to have been covered and things that the agencies needed warrants for were not covered and they could not get warrants for them. So it served neither to protect the public appropriately nor to empower the agencies appropriately. So the advice from officials which the select committee tested very thoroughly including by talking to the Privacy Commissioner the Inspector-General of Intelligence and Security and various other submitters was to move to a new definition which in some ways is modelled on the approach that is taken in other jurisdictions.For example the United Kingdom does not try to define national security and get themselves into that sort of straitjacket. It takes an approach where the term national security" is left undefined which is what we have now gone for in this rendition of the bill as it has come back from the select committee. But we have the additional protection that in order for you to get a type 1 warrant against New Zealanders it not only has to contribute to the protection of national security it has to enable the assessment or protection against the harms that are set out in clause 55A(2). I am going to run through those because they are all very high-level thresholds.The first is terrorism or violent extremism. I accept that if there is a threat to New Zealand involving terrorism or violent extremism it is appropriate that our GCSB and SIS agencies have the power to get a warrant against a New Zealander if it relates to national security and it relates to terrorism or violent extremism.The second alternative is if it relates to espionage or other foreign intelligence activity that is directed at New Zealand interests that is carried out by a person who is a New Zealand citizen or permanent resident and that occurs in New Zealand. Again that is quite a high-level test because it has got to be a matter of national security and espionage or other foreign intelligence activity of the type that I have just covered.The third example is national security and sabotage within the meaning of section 79 of the Crimes Act. So if someone was going to plant an explosive device to blow up a dam or cause some disturbance I think that is serious enough for our agencies if it is a matter of national security to have some powers to get a warrant—similarly for the proliferation of weapons of mass destruction.Then the last one is anything that may relate to a serious crime and I am going to come back to the definition of what is serious enough to really be a serious crime. It has to be a matter of national security and a serious crime that originates outside New Zealand or is influenced from outside New Zealand. So in that case if it involves some international drug syndicate or people-smugglers or something like that or it involves the movement of money goods or people—actually I probably should have mentioned people-smugglers in the second alternative—or if it has the potential to damage New Zealand's international relations or economic well-being then it can fit within that area.The concept of economic well-being being used in respect of a warrant against a New Zealander has to be prescribed. This was one of the points that was made very clearly by Cullen and Reddy. Otherwise if you have a wide definition of economic well-being anything would go because you could virtually say that anything relates to economic well-being. But for that to apply here it has firstly got to be a matter of national security and secondly it has got to be a serious crime as well as having the potential to damage New Zealand's international relations or economic well-being. I think that is fair enough so long as the threshold in respect of serious crime is high enough.The threshold in the bill as it came to select committee and indeed as it left select committee is a maximum term of imprisonment of 2 years which I do not think is actually a proper definition of serious crime. I note that the definition in the search and surveillance legislation that came through this House actually has as a threshold 5 years. I would have preferred a 5-year definition. The Prime Minister and the officials came to us and said "Well there are these series of crimes including crimes that could have an international dimension that ought to be caught that have less than 5 years of maximum imprisonment but should none the less be caught." and the Prime Minister then offered a compromise of 3 years which the Labour Party is willing to accept because it is better than 2 years. We would have preferred 5 years. We cannot get the 5 years because the Government is not willing to agree to it. It is a matter of important detail but none the less it is not going to mean that we vote against the whole of the bill and so we are willing to accept a compromise of 3 years.For that reason the Prime Minister has put forward in Supplementary Order Paper 269 an amendment to the definition of "serious crime" to change the provision—and the Minister in the chair Chris Finlayson will tell me if I have got this wrong whether it is the Prime Minister's Supplementary Order Paper or another one. I think it is the Prime Minister's Supplementary Order Paper—that is the agreement we had—and it will change it from 2 years to 3 years. On that basis I think that we get the limited circumstance in which these things can be used against a New Zealander's right. How is this an improvement on the status quo? We know from debates in respect of the GCSB that right at the end on the final reading of that bill the then Prime Minister was reluctantly—I have to say—forced to accept that under the GCSB legislation that was passed as an interim measure following the Dotcom fiasco there was the ability to spy on New Zealanders in a rather unconstrained way. The Prime Minister said "Don't worry about that; I won't operationalise it."That was better than nothing but you are actually better to have these things appropriately prescribed by legislation rather than left to the will of a Minister as to whether they will inappropriately use the powers that have been granted by Parliament. We know that is not the right way to do it. We should have these rights constrained and I think that with these amendments as recommended by the select committee we get to that point and accordingly I am in favour of Part 4 of the bill."