edithatogo/nz-hansard-corpus huggingface dataset:
Davis KelvinKELVIN DAVIS (Labour—Te Tai Tokerau): I follow on from what my colleague Kris Faafoi has mentioned. First of all a marae in my opinion is not a private premises. It is in fact very public. It is a place where Māori have funerals birthdays church services weddings—basically they are open throughout the whole—Meka Whaitiri: Campaign launches.KELVIN DAVIS: —yes campaign launches. They are open basically throughout the day and accessible 24/7 in general. So I disagree (a) that they are private premises but also (b) that they are premises to which members of the public do not usually or frequently have access. I mean a marae can be used every day of the week and if we are having tangis one after another—which is sadly often the case—then maraes are open all the time. Quite possibly every weekend there is something going on at a marae. As Kris Faafoi has said just around why a marae has been singled out it is almost implying that Māori are more dangerous than other members of the public. I do not know why churches have not been included in there or community halls or the Freemason halls or the croquet clubs or the bowls clubs or any other sports clubs—bridge clubs.I am slightly annoyed that it is there. I do not know whether it has to be there. But certainly probably all New Zealanders need to understand that marae are public places and anybody can hire a marae regardless of their ethnicity. You go there on the basis of knowing that a marae has certain values and kaupapa and tikanga—rules" is basically the word—to obey but they are public premises not private premises. They are there for all members of the community. They are open frequently. To me it is something that does not necessarily need to be there and it does conjure thoughts of the Urewera raids. The surveillance is going on there up there in the bush I believe although I do not know the full details around the whole circumstances. Given the fact that it does not really need to be there I would hate for Māori to stand up and say: "This is a racist piece of legislation." when the reality is that we do need this and that is why the Labour Party supports the legislation.Just one other thing—and I guess this is what happens when you are not part of a select committee and you come into the House and pick it up and just go through it part by part. I understand now what the Minister was referring to in terms of warrants when I was asking about something in Part 3. This explains it really carefully and really clearly. I have to say that my concerns about Part 3 have been appeased by reading Part 4. I guess I need to start reading Part 5 so I do not ask irrelevant questions this time around."
Graham KennedyDr KENNEDY GRAHAM (Green): Thank you Mr Chairman very much for that explanation. Of course we respect that and operate on the same presumption. But just by way of passing preface with respect to what the Hon David Parker was saying—and he gave a very lucid explanation of the reasoning process by which the Committee seems to be coming to that view—and with respect to the Minister for his very able treatment of this whole issue not least the bill itself none the less we in the Green Party felt obliged in not having participated in the intimacy of first past the post. We felt obliged to put forward what we had always embraced which was a view that 5 years was the natural limit but we will just accept whatever fate hands to us. So thank you again.I just move to clause 92 which is covered in our Supplementary Order Paper 268. It pertains to the appointment of three persons as Commissioners of Intelligence Warrants in subclause (1) and the appointment of one Commissioner of Intelligence Warrants as the Chief Commissioner in subclause (2). We would simply replace the words Prime Minister" with the words "Intelligence and Security Committee". The reason for that proposal is intended to provide further transparency and oversight of the key positions in the new framework particularly the Commissioners of Intelligence Warrants.I will not elaborate on the point. I think colleagues will understand where we are coming from on this. It does pertain to the whole composition of the Intelligence and Security Committee which will become subject to debate a bit further down the track so I will not presume that debate; I will just put forward the proposed amendment. Thank you."
SpeechThe CHAIRPERSON (Hon Trevor Mallard): It is my intention to call Dr Kennedy Graham but before I do I do want to inform him so that he is not under a misapprehension and so that the Committee is not that when we come to the vote on his Supplementary Order Paper 268—if in fact the Committee has agreed as is my expectation to the Minister's Supplementary Order Paper 269—his amendment to clause 47 will at that point be out of order. Therefore it is my intention to split his two amendments to this part—not to put the amendment to clause 47 but to put the amendment to clause 92. I am of course anticipating what the Committee might do but I thought it was better to warn the member now rather than have a fuss later on.
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): Can I just use this example. This relates to as I said a person in the course of acquiring using or maintaining …". The activity that that person may undertake under an assumed identity—breaking and entering or whatever—would still have to be the subject of a warrant. Does that clarify the matter?The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 3 be agreed to.Amendments agreed to.Part 3 as amended agreed to."
Davis KelvinKELVIN DAVIS (Labour—Te Tai Tokerau): I just want that to be clarified. So immunity in the course of acquiring but then using the assumed identity; surely Minister that would mean that in the course of using that identity going about undercover—How far does it go?" is the question. I would just like that point clarified sorry."
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): I am grateful to Mr Davis for raising those points and I was listening; I was just trying to work out what my assumed name would be according to the Pretoria formulation. It would be Francis Lohia  so I do not think that would work at all well. But anyway back to serious stuff.The honourable member Mr Davis raised the issue of the immunity under clause 34. Can I emphasise that that immunity goes to someone who is protected from civil and criminal liability" for any act that is done "in the course of acquiring using or maintaining an assumed identity". But I want to emphasise to the member that any particular act by a person be it under an assumed identity or not has to be the subject of a warrant. So there are two parts to it and what we are focusing on in clause 34 is the immunity that comes when someone is in the course of acquiring—what is it—using or maintaining an assumed identity."
Davis KelvinKELVIN DAVIS (Labour—Te Tai Tokerau): If I am to use my spy name using the Grant Robertson formula I would be Glen Leonard.Grant Robertson: That's original.KELVIN DAVIS: Yes that is original. This part of course deals with what everyone thinks of when we talk about spies: the whole undercover agent undercover cop - type scenario. It reminds me of one of my favourite TV shows as I was growing up with good old Maxwell Smart as Agent 86. I remember the time he was a bit distressed by the fact that his girlfriend Agent 99 was paying too much attention to Agent 43 and she pacified him by saying: Don't worry 86 you're worth two 43s".Hon Members: Ugh!KELVIN DAVIS: I did not write it. When we look at undercover agents undercover spies whatever you want to call them their purpose would be to do things such as—I assume—infiltrate gangs drug syndicates and other organised crime. I think it is clause 34 where—sorry just to go back those people who would have to infiltrate organised crime or gangs or drug syndicates may in the course of their duties actually have to commit crimes themselves. Just to say fit into a gang they may have to partake of drugs or—who knows what they may have to do.Clause 34 is about the immunity of authorised persons. I think that is the correct wording: "Immunity of authorised persons". It says: "An authorised person is protected from civil and criminal liability however it may arise for any act that the authorised person does or omits to do in good faith and with reasonable care—(a) in the course of acquiring using or maintaining an assumed identity in accordance with an authorisation given under section 26;". I am just wondering: is that total immunity? How far could an undercover person actually go in order to do whatever they have to do under an assumed identity?I have also heard stories about people who have say spent a lot of time undercover in gangs and in drug syndicates and actually become immersed in that lifestyle. They actually have a lot of harm and psychological issues because of that lifestyle over a number of years. I guess this is not a question or anything; it is really just a plea that anybody who does go undercover in-depth for a lengthy amount of time in those organisations—what sort of help and support do they actually get when they have to come out of undercover? We have heard of people suffering mental health issues addiction to drugs and basically being ignored by the agencies that once employed them. So really this is just a plea that those people who put their lives in jeopardy who put their lives on the line when they go undercover and when they actually become immersed in whatever culture they are trying to break—that at some stage when they come out of that they have the support that they need to step back from that lifestyle to step back from whatever and basically get the counselling and the support to get over the experiences that they have had.That is just a small contribution in terms of the immunity of those authorised persons and concern for their care."
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): The previous speaker Iain Lees-Galloway raised a very good point about the term will be an employee" and I should simply say that sometimes the actual cover is created and it may be used over a number of years so when the cover is created a person for example may not be an employee but may be for the operation some years later. So that is why we have the belt and braces "is or will be" because at the relevant time of creation of the cover the person may not be an employee. So it is simply to cover off that exigency. Can I simply say there is a broader question that I omitted to mention but we will come to it in Part 7 and that is in relation to assumed identities.One other matter that I should have referred honourable members to is in clause 165(b) simply to say that ministerial policy statements are able to be issued quite apart from warrants and so on. Part 7 deals with—Hon Ruth Dyson: I'm sorry. What clause did you say?Hon CHRISTOPHER FINLAYSON: I am sorry—clause 165. It deals with ministerial policy statements. Just to emphasise that quite apart from what is in the statute a ministerial policy statement can be issued dealing with the detail of "acquiring using and maintaining an assumed identity" or "creating and maintaining a legal identity"—that is clause 165(c). So in due course the responsible Minister will be producing policy statements that will provide for the detail of the matter."
O'Rourke DenisDENIS O'ROURKE (NZ First): I am glad that the Foreign Affairs Defence and Trade Committee took so much trouble over Part 3 and all of its subparts because it is the part of the bill that New Zealanders would probably be most interested in. It conjures up—Grant Robertson: What's your spy name Denis?DENIS O'ROURKE: My favourite movie was The Third Man. I do not know whether you remember it but it is a very good classic movie.Tim Macindoe: You're showing your age.DENIS O'ROURKE: Yes it does show my age. This part of the bill really conjures up all of those images that you see in that movie—the trench coat the wide-brimmed hat the dangling cigarette and the muttered conversations in shady places. It is very much like the way the National caucus works actually. For those reasons it is the part of the bill that New Zealanders would be most interested in.The thing that would offend people the most would be to find that somebody with an assumed identity had intruded in some way into their lives. Nobody would like that. It is humiliating. It is a very underhanded way of obtaining information. So for all of those reasons it is very important that the terms and conditions under which that is allowed and the particular provisions in the authorisations are very important. That is why I agree with what Mr Robertson said about the register which is a very very good way of counterbalancing the intrusion that an assumed identity can have into people's lives.If there is a register it means that we get the oversight by the inspector-general and that is specifically in the bill. In that way we can be sure that not only is there a robust regime for an authorisation so it is not just done as a matter of practice but it has to be properly justified and authorised. But there is a system for oversight as well.Although it is rather fun to talk about this on the one hand it is very serious. I did want to add my commendation as well for the work of the select committee which did take it seriously and has made a very good job of making sure we have got robust authorisations and a good system of oversight as a check and balance against the sort of humiliation that results from situations where assumed identities are used.I am also very happy with this part of the bill. All the subparts of it whether it is individuals or corporates assuming identities are all very well covered. New Zealand First is very pleased and happy with this part of the bill.
Finlayson Christopher; Borrows ChesterPart 3 Covert activities of intelligence and security agenciesHon CHRISTOPHER FINLAYSON (Attorney-General): I will just say one or two things about this part which provides for the creation use and maintenance of individual assumed identities and legal entities that are used for cover purposes in order to protect the secrecy of the intelligence and security agencies' work and activities. There were some changes—as one can see—in the course of the Foreign Affairs Defence and Trade Committee's consideration but I really want to focus on the third subpart.Part 3 comprises three subparts; the first enables the acquisition use and maintenance of assumed identities by employees of the security and intelligence agencies. The changes that have been made in the course of the select committee's deliberations are not major there. Then the second subpart deals with corporate identities. In many respects actually it mirrors the first subpart except that it provides for the creation—including the conferral—of a particular legal status the maintenance and the use of legal entities through which an intelligence and security agency may conduct transactions in order to keep its activities secret.The final subpart—which I really think is the one that maybe members will want to focus on—is Subpart 3 and that has been added following the work of the select committee. It creates a requirement for the agencies to maintain registers of assumed identities and legal entities that have been created and maintained under Subparts 1 and 2—and I particularly refer honourable members to clause 45A(3). That register is able to be accessed at any time by the Minister responsible for the particular agency and by the inspector-general. Obviously the maintenance of a register is an extremely important concomitant if you like of the need for accountability.Grant Robertson: Cancomitant?Hon CHRISTOPHER FINLAYSON: Concomitant—I am sorry I did not realise my pronunciation was so poor. So I think that is where the discussion is. These are powers that as one can see for example in Subpart 1 any intelligence and security agency will require both in relation to the individual and in relation to corporate identities—Subpart 2. But the all-important control of the register is able to be accessed by the Minister or the inspector-general at any time.The CHAIRPERSON (Hon Chester Borrows): I call Grant Robertson.Hon Ruth Dyson: Oh good choice—good choice.
Whaitiri MekaMEKA WHAITIRI (Labour—Ikaroa-Rāwhiti): Tēnā koe Mr Chairman. Thank you for this opportunity. Clearly what we are trying to do here is modernise our intelligence and security legislation which needs to be commended. Just on Part 2 just prior to our dinner break my colleague Kris Faafoi raised an issue. I cannot pretend that it is the same issue that I am about to talk to but it was in relation to clause 20 in Part 2 Specific duties of Director-General of an intelligence and security agency" where we lay out that their duties are taking "reasonable steps to ensure that—(a) the activities of the agency are—(i) limited to those that are relevant to the performance of its functions; and (ii) kept free from any influence or consideration that is not relevant to the performance of its function; and (iii)"—which really comes to perhaps my question for clarity for Minister Finlayson—"politically neutral (for example the activities are not carried out for the purposes of promoting or harming the interests of any political party or candidate);".I guess the question that I would like to ask is whether that is limited to New Zealand political parties and New Zealand candidates or whether it is much broader. Clearly we could meet that particular threshold but it may have wider implications. Can I ask that we turn to clause 13 in terms of being politically neutral which I think is a very very high standard and should be supported. When I read clause 13 in Part 2 we talk about intelligence collection and analysis and we talk about the function of the intelligence and security agencies which "collect and analyse intelligence in accordance with the Government's priorities;". I guess my question and I would welcome the Minister's explanation is how we ensure that in assessing the Government's priorities—and it says in clause 13(1)(b) that once that intelligence is gathered and analysed it is provided to the Minister the Chief Executive of the Department of Prime Minister and Cabinet and other persons—we uphold clause 20(a)(iii) in terms of maintaining our political neutrality. I am just making sure that we have got those checks and balances to ensure there is no over-interference from Government priorities as per clause 13(1)(a) and the clause that I am seeking some clarification on which is clause 20.That is really just a short contribution. I am keen to hear from the Minister in relation to clarifying that. Thank you."
Graham KennedyDr KENNEDY GRAHAM (Green): I just have one further and I think final comment on my previous point about clause 11(b) and I am picking up from Grant Robinson's intervention which I thought was very useful. Obviously it in the same subclause: the international relations and well-being of New Zealand;". He inferred that the two are somehow interrelated. That may be but it is not clear in the legislation and it is not a necessary inference. So we have to conclude I think that the concept "well-being of New Zealand" stands on its own—separate and discrete. I still think that it is problematic if it is left undefined. National security is as I say there in clause 55A and we do traditionally understand what we mean by "international relations".To meet Mr Robertson's point you could say "the positive international relations of New Zealand" but if you just say "well-being of New Zealand" it is wide open to abuse or maximum and broad interpretation. I will give you just one quick example. A country that relies on and embraces the doctrine of nuclear deterrence for example would presumably interpret the well-being of that country to include the possession and potential use of nuclear weapons. New Zealand on the other hand has legislation that disbands disavows the possession of nuclear weapons for itself. So presumably therefore necessarily the well-being of New Zealand rests on a repudiation of nuclear deterrence. Those are diametrically opposed concepts. So you could have in intelligence legislation in two countries—if it were "Five Eyes"—partners engaging in espionage on two different people who are saying entirely different things on the grounds that it is meeting their legislation. I know we are just talking about New Zealand but I think it reinforces and highlights the problematic nature of a broad concept that is undefined when there are criminal penalties in the same bill.On reflection we did not put it into a Supplementary Order Paper. The same problem does not pertain to national security because clause 55A(2)(d) talks about the proliferation of nuclear weapons. So the concept of national security is constrained and defined; "well-being" is not anywhere in the bill. So we may want to before we conclude the passage of the bill through the Committee just reflect further on whether clause 11(b) might be better served if there were an appropriate adjective in front of "international relations" and if the undefined concept of "well-being" were omitted. Thanks."
O'Rourke DenisDENIS O'ROURKE (NZ First): I just wanted to comment briefly on clause 23. I first of all want to just talk about the meaning of consultation" because it is often used in legislation and it is often not used very clearly in legislation and this is one of those occasions. We do not really know what we are talking about when we talk about in terms of clause 23 "consultation" between the director-general of an intelligence and security agency and the Leader of the Opposition.Consultation generally can be for one of three purposes: (1) it could be consultation for information which is just passing information from one person to another and nothing more; (2) it could be consultation for participation which implies that there would be an expectation of feedback and some discussion; or (3) it could be consultation for collaboration which takes a step further meaning that the expectation of the consultation would be some attempt at reaching consensus or even joint decision-making. It could even go that far.So just to put word "consultation" in legislation actually does not take you very far. It leaves it open as to what that really means and that is the problem that we are having with this clause here tonight. So I am not very concerned about it—I might say—but if others are concerned about it then it would be dealt with effectively by describing what the purpose of the consultation was.The second point I wanted to make about clause 23 is that it refers only to the Leader of the Opposition and not to any other Opposition party. So I wonder as a result of that whether the Leader of the Opposition would then be expected to take a further consultative step by talking to the leaders of other Opposition parties whether that is intended or not or whether the intention is that it just be the Leader of the Opposition and he has no expectation or authority—that is probably a better word—to reveal that information to anybody else even within his own party let alone the leaders of other parties.So what actually is the intention here? Is it that the Opposition as a whole would be involved in this or is it just one person? It is not clear to me and again I am not very concerned about the whole issue but if others are then that is another point that could probably be covered off not just by way of explanation by the Minister in the chair Chris Finlayson but by amending the clause itself. That is some food for thought Minister."
Graham KennedyDr KENNEDY GRAHAM (Green): I apologise to the Minister if I did not make myself very clear. I will try to make it much more succinct. I am referring to clause 11(b) not clause 11(c). I am not referring to economic well-being"; I am referring to clause 11(b)—the concept of "well-being of New Zealand"—which is far broader. I also made the point in the second reading that it is a bit conceptually confusing when "economic well-being" is a subset presumably of well-being and it is identified separately—but that is a secondary thing. The principal question in my mind is what is anything approaching a clear definition of the concept of "well-being of New Zealand" when there are criminal penalties in this legislation?"
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): Mr Chair I apologise for forgetting about the salutation. But no it is a very fair question. Under the previous legislation there could have been issues about whether or not an anti - Trans-Pacific Partnership (TPP) campaigner could have been arguing or contending against the economic well-being of the country by opposing the TPP. In fact the wording of the existing legislation is very vague in that regard. But when you look at the term economic well-being of New Zealand"—and we will come to it when we deal with the warranting regime and the much better definition of "national security"—I think the honourable member will find that will not be possible.Dr Kennedy Graham: I raise a point of order Mr Chairperson. Just to continue the interesting conversation—The CHAIRPERSON (Hon Chester Borrows): Take another call. You have got three left.Hon CHRISTOPHER FINLAYSON: Can I just comment on what the previous member said because I think she raised a number of very important points about clause 11 and that word "principal". What does that mean? Are there some hidden deep - State subsidiary objectives that are not to be spelt out in the legislation?I thought that was a very good question with respect. I think that what we are dealing with here are the objectives that capture the key work of the intelligence and security agents. The collection of foreign intelligence for example enables New Zealand to understand key international developments that may present a risk or an opportunity to this country. It also enables work in support of other countries to help for example to reinforce international law detecting illegal fishing in the Southern Ocean—matters such as that. Action taken in pursuit of these objectives also enables the Government to make decisions in the national interest across a broad range of foreign-policy objectives. But I would emphasise to her that there is no hidden meaning behind the word "principal"—that these are the principal objectives but there are some kinds of unstated objectives that somehow need to be brought out into the open.Can I also simply say to her—she raised a question I think about what a "public authority" is—that it is actually defined in the interpretation clause. It is an additional definition that has been included by the select committee. I will not go through it now but it is set out for her there."
Graham Kennedy; Borrows ChesterDr KENNEDY GRAHAM (Green): I just want to pick up on one point the previous speaker Jenny Salesa had raised and put a slightly different slant on it and with respect request the Minister to respond to one specific issue in clause 11. As I think became clear in the course of the Foreign Affairs Defence and Trade Committee's discussions the issue of national security I think was handled with considerable insight and we in the Green Party are quite reassured on the delineation of the nine harms identified in relation to national security. That said we do have views on the manner in which that impinges on the bill as a whole and we made that clear especially in the second reading debate.But the point I wanted to raise is in terms of one specific concept and that is in clause 11(b) well-being" itself because the previous speaker picked up on "economic well-being". But as I think I pointed out in my second reading speech I think we now have a bit of an idea about the concept of national security. I think we know traditionally what "international relations" means and I think we know traditionally what "economic well-being" means. I do suggest—and I did suggest in the second reading and I would like to put it to the Minister—that the concept of "well-being" in itself is just a tad too broad and amorphous when there are criminal penalties in a bill. I would invite the Minister to give—certainly it is not in the interpretation clause—his succinct interpretation to the Committee of what "well-being of New Zealand" means.Hon Christopher Finlayson: I would be very happy to do that immediately—The CHAIRPERSON (Hon Chester Borrows): Hon Christopher Finlayson."
Faafoi KrisKRIS FAAFOI (Labour—Mana): I would like to point to clause 20 which talks to Specific duties of Director-General of an intelligence and security agency". I think in Part 2—and I guess in the total of this bill—this is an important clause because it goes to the integrity of the service and to making sure that there is an onus on the director-general of one of our intelligence agencies to make sure that our intelligence agencies perform and that they are without undue influence. Clause 20 goes on to say: "The Director-General of an intelligence and security agency must take all reasonable steps to ensure that—(a) the activities of the agency are—(i) limited to those that are relevant to the performance of its functions;"—I think that is fair enough—"(ii) kept free from any influence or consideration that is not relevant to the performance of its functions." Clause 20(a)(iii) states I think importantly that the agencies must be "politically neutral (for example the activities are not carried out for the purpose of promoting or harming the interests of any political party or candidate);".I think that is a very important clause within this piece of legislation. I do not want to dwell on it but Mr Parker did allude to it earlier where there was I guess—I am trying to be diplomatic—a disagreement between the former Leader of the Opposition and now Auckland mayor the Hon Phil Goff and I think it was at the time the Director-General of the Security Intelligence Service Warren Tucker over whether or not a briefing had been or had not been delivered to the Leader of the Opposition at the time. The issue at the time was the release of an Official Information Act request as to whether Mr Goff had in fact been—The ASSISTANT SPEAKER (Lindsay Tisch): Come back to the bill.KRIS FAAFOI: —unfairly treated and potentially non - politically neutral.Sitting suspended from 6 p.m. to 7.30 p.m."
Parker DavidHon DAVID PARKER (Labour): I just want to refer to a couple of the contributions that have been made by my own colleagues. The Minister in the chair the Hon Christopher Finlayson can correct me if I am wrong here but the questions that have been asked in respect of clause 14 about protective security services advice and assistance that might be provided for example by the GCSB are not about intrusive powers of the State. Those intrusive powers of the State are dealt with in later parts of the legislation—covert activities in Part 3 and surveillance activities or warrants that you might get against parties are dealt with in Part 4. What this is is actually generally helpful advice that is being provided by arms of the State to those who need it.The real example I will give is that the GCSB has a programme now that assists New Zealand companies to protect the integrity of their systems from cyber-attacks. This is a very real issue in New Zealand and around the world and you only need to read what has been happening in respect of the interrogation of the Democratic Party's electoral efforts by Russian operatives which is alleged to have occurred in the United States to know that these things if not protected against can actually undermine local democracy.Another example that I like to use is that of course we use computer systems now to operate our infrastructure. An obvious example is that Transpower and the generation companies have computer systems that control when dams are opening for their water to come through and generate electricity and where electricity is directed around the grid. If those sorts of computer systems are breached by people who have got an improper purpose they can wreak considerable havoc to our economy. Not all of the people who might want to do that are acting in the best interests of New Zealand and I think it is important in a small country like this in New Zealand where we have repositories of expertise such as that which lies in the GCSB but not in the Police or other agencies that on occasions they run programmes with the private sector to give of that expertise to the private sector in order to protect our infrastructure.So that is actually what clause 14(2) is actually doing. It is allowing the GCSB to provide: (a) services and advice relating to developing and implementing protective security arrangements including arrangements for— … (ii) information security (for example information assurance and cybersecurity activities);". These are actually real activities that the GCSB currently undertakes and should be able to undertake in the future and therefore I think that properly read clause 14 is not about intrusive powers of these agencies; it is about powers of assistance. If I have got that wrong I am sure the Minister in the chair will tell me."
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): I am delighted to provide immediate assistance to the member for Wigram and suggest she read clause 16(3) because an intelligence and security agency provides assistance to a public authority. If it is Police for example it will be subject to the Independent Police Conduct Authority (IPCA) and of course in relation to the intelligence agency providing the advice and assistance that agency will be subject to the continuing oversight of the Inspector-General of Intelligence and Security. So I think that that probably answers her question.I come to Mr Faafoi's—if I may say so—excellent question about the amendment to clause 14. I think again it is important to note that the intelligence and security—Oh I am not saying the honourable member for Wigram's question was not excellent; just that Mr Faafoi's was particularly helpful. [Interruption] I thought that was an excellent recovery actually. But I do say to Mr Faafoi that he should rest assured that at all times the intelligence and security agencies are subject to the ongoing supervision of the inspector-general and there is the ministerial supervision as well. So I think to that extent that is perfectly acceptable. As I said if there is any public authority in New Zealand that public authority will also be subject to its own supervisory requirements. I use the example of the Police and the IPCA so I think the checks and balances are there.
Finlayson ChristopherHon CHRISTOPHER FINLAYSON (Attorney-General): I am happy to oblige—this is in answer to Mr Lees-Galloway's comments about clause 13(1)(iii). An example of persons within New Zealand may well be the customs or immigration authorities or police or their counterparts overseas provided that the Minister is satisfied that if information is provided to a foreign entity someone will not be garrotted for example because you have to act in accordance with New Zealand's human rights law.
Lees-Galloway IainIAIN LEES-GALLOWAY (Labour—Palmerston North): I would like to turn the attention of the Minister in the chair Chris Finlayson to clause 13 Intelligence collection and analysis". Specifically I am interested in clause 13(1)(b)(iii) which allows for intelligence that has been collected and the analysis of that intelligence to be distributed to "any person or class of persons (whether in New Zealand or overseas) authorised by the Minister" to receive the intelligence and any analysis of that intelligence.Admittedly I am coming at this as a layperson—I was not on the Foreign Affairs Defence and Trade Committee—but I think as a layperson that looks awfully broad and I wonder whether the Minister would be able to inform the Committee exactly what the criteria are that are used to determine who the person or class of persons ought to be who should be able to receive that intelligence. Actually the reference to subclause (3) has been struck out. Subclause (3) says that if I am reading this correctly—no sorry it has not been struck out; it has been changed. It has been changed and it says: "Before authorising under subsection (1)(b)(iii) the provision of intelligence [and the analysis of that intelligence] to any person overseas or class of persons the Minister must be satisfied that in providing the intelligence [and analysis] the intelligence and security agency will be acting in accordance with New Zealand law"—ah I would hope so—"and all human rights obligations recognised by New Zealand law."That gives some reassurance that the agencies must be acting lawfully and must be sure not to contravene people's human rights but what it does not clarify is exactly who we expect would be the recipients of that information especially given that they could be within New Zealand or they could be overseas. I am utterly sure that it is legitimate but for people who are coming at this from a perspective of not knowing this legislation inside and out I think it would be useful to the House if the Minister was able to address that."
Parker DavidHon DAVID PARKER (Labour): I will take a brief call in respect of Part 2 of the amendments to the Intelligence and Security Bill. I accept that the amendments that are shown in the Minister's Supplementary Order Paper do not change the substance and that they are merely drafting improvements. Can I just talk to clause 20 of the bill. This was amended at the Foreign Affairs Defence and Trade Committee and I want to speak in favour of the form that it has come back in from the select committee. The obligation for political neutrality—I think when I spoke in the first reading debate I confused in my contribution the GCSB with the SIS and the Attorney kindly pointed that out before I dug myself too deep a hole. The point that I was making was that Warren Tucker when he was head of the NZSIS allowed his office to be used in a way that was not politically neutral. In order to guard against that happening again the purpose of clause 20 Specific duties of Director-General of an intelligence and security agency" which includes the SIS has included: "The Director-General of [such] an … agency must take all reasonable steps to ensure" and then at clause 20(a)(iii) that their activities are "politically neutral (for example "the activities are not carried out for the purpose of promoting or harming the interests of any political party or candidate)".All you can do in respect of these—if you accept the proposition that you need these sorts of agencies what is important in order to balance the interests of society and those agencies going about their business is a countervailing duty that they do not go too far and undermine the society that they are meant to be protecting which is a point that Kennedy Graham made in his initial contributions.I think that the addition of that clause 20(a)(iii) is good. In the end the oversight of these agencies depends most not just on the calibre of the people that you appoint to those positions but also on the oversight of the Inspector-General of Intelligence and Security the IGIS I think we describe her as—it is currently Cheryl Gwyn. For those reasons I think that is an appropriate addition as it came back from the Foreign Affairs Defence and Trade Committee."
Finlayson ChristopherPart 2 Intelligence and security agenciesHon CHRISTOPHER FINLAYSON (Attorney-General): I will say something about Part 2 which provides for the continuation of the intelligence and security agencies and sets out their objectives functions and duties. The key change to Part 2 is in the redrafting of clause 15 for greater clarity and the reorganisation and consolidation of the general and specific duties owned by the intelligence and security services. So let us look briefly at clause 15 because the redrafting makes clearer when the GCSB is required to obtain an authorisation for information assurance and cyber-security activities carried out pursuant to clause 14(2). Certain other matters are spelled out for the avoidance of doubt. So for example clause 15(5)(b) makes it clear that the information about cyber threats can be shared with certain other agencies including foreign partners but a new requirement has been added in Part 2 for the Minister to be satisfied—and this is an important requirement—that sharing with foreign agencies is in accordance with New Zealand law including human rights obligations recognised by New Zealand. The second part that I want to talk about concerns the duties applicable to the intelligence and security agencies. These duties are contained in clauses 19A through to 23 and they have been reorganised and consolidated including by reframing the principles that were in clause 12 as introduced as duties. So I turn to clause 19A. It replaces the previous clause 12 and the effect of this amendment is that what we have previously described as principles applying to the intelligence and security agencies but purporting not to impose any duties have now been as you can see replaced with specific obligations. They are the obligation to act in accordance with New Zealand law and all human rights obligations recognised by New Zealand law and the duty to act independently and impartially with integrity and professionalism and in a manner that facilitates effective oversight. In addition clause 20 sets out some specific duties on the directors-general. They are to take all reasonable steps to ensure that the activities of the agencies are limited to those that are relevant to the performance of their functions and are kept free from any influence not relevant to the performance of their functions. Very very importantly they are politically neutral. They have been consolidated as I say in that redrafted clause 20 which is a very important clause indeed. It also includes a duty on a director-general to ensure that any cooperation with foreign jurisdictions and international organisations is done in accordance with New Zealand law and all human rights obligations imposed by New Zealand law.
Graham KennedyDr KENNEDY GRAHAM (Green): The Green Party has submitted Supplementary Order Paper 268 and the first of its proposed amendments pertains to clause 3. In clause 3(d) we would suggest that we insert after the word safeguards" the phrase "in a manner consistent with the primary purpose stated in paragraph (a)". The proposal reflects our belief that the democratic rights and freedoms of New Zealand society should be considered paramount above national security agencies which function to protect an open society but they are not an inherent right for the Government to exercise in and of itself. So that is our first proposed amendment."
Finlayson ChristopherINTELLIGENCE AND SECURITY BILLIn CommitteePart 1 Preliminary provisionsHon CHRISTOPHER FINLAYSON (Attorney-General): With each of these parts I will make some preliminary comments and I will keep it short on Part 1 because it deals only with the preliminary provisions. There are some changes that are made in Part 1 and they relate to the interpretation and definition clauses. The most significant is that of the definition of national security. What appeared in clause 5 was the definition proposed by the independent reviewers and as I said when I was speaking in the first reading of the bill I would put that to the select committee and also an alternative proposal.The definition as proposed by the independent reviewers was removed on the recommendation of the Foreign Affairs Defence and Trade Committee. We will come to it in due course but it is replaced with a two-part test in clause 55A. That test requires the Minister and a Commissioner of Intelligence Warrants to be satisfied that the issue of a type 1 intelligence warrant will enable the carrying out of an activity that is necessary to contribute to the protection of national security and identifies and enables the assessment of or protects against one of the specified harms. There are a couple of other changes but I think that really is the one that I need to bring to the attention of the Committee.
Muller Todd; Mallard TrevorTODD MULLER (National—Bay of Plenty): I rise to take a short call on these two cognate bills. Well there really is not anything more attractive than watching Clayton Cosgrove and listening to him wax lyrical about fairness—Clayton Cosgrove of all people over on that side. And he got it wrong because actually Chris Bishop's comment related to fairness in respect of broadcasting allocations. Somehow he managed to take it down a different path but we enjoyed it nonetheless. He is not a bad bugger himself.I would like to talk just a little bit about this move away from the compulsion to have opening and closing addresses on television. I had an experience a long time ago—21 years ago in fact; in 1996—up on the ninth floor sitting around there with Prime Minister Jim Bolger. We were about to see the opening of the campaign in 1996. We had this fantastic video and we watched it and it was just extraordinary. He was looking statesmanlike. I think our campaign line was First Tick National" which has gone down in the annals of great political campaign lines. So we watched that and then we followed Helen Clark looking particularly austere and determined and all a bit negative. And of course then there was Winston with his wavy hair and talking I think from memory about superannuation and immigration—21 years ago. I thought it was a very very impressive series of political advertisements. I walked from that office and talked to friends of mine and said: "Did you see it—did you see it?". They looked at me blankly—they had not looked at it. This was 21 years ago and I realised that actually no one really tunes in to those electoral ads.So it is very very good to see that finally we have adjusted the Broadcasting Act to reflect the reality as so many of our speakers have said today of New Zealand civil society really in terms of the way they engage with their media. Certainly sitting in front of television at 7 o'clock at night watching our professional PR promotions certainly does not cut it any more. Building in the flexibility to be able to talk in our own language to New Zealanders in the language of their lives and in the medium that they are most comfortable with is appropriate. These are indeed the sorts of changes that a sensible Government—with by the sound of it borderline reluctant support from an Opposition being dragged kicking into the 21st century—has finally got across the line. I think it is good. It is good direction and I strongly support these bills. Thank you.The ASSISTANT SPEAKER (Hon Trevor Mallard): Before I call Louisa Wall I did not interrupt the member but I just want to counsel him that one of the expressions he used I think is probably not to be encouraged."