Countering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In CommitteeText is incorporated into the Bound VolumeCountering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In Committee[Sitting date: 09 December 2014. Volume:702;Page:1207. Text is incorporated into the Bound Volume.]Countering Terrorist Fighters Legislation BillSecond ReadingHon CHRISTOPHER FINLAYSON (Minister in charge of the NZ Security Intelligence Service)on behalf of theMinister for National Security and Intelligence: I move That the Countering Terrorist Fighters Legislation Bill be now read a second time. This is an omnibus bill that responds to the rapid evolution of the threat posed by those who want to commit terrorist acts both overseas and in New Zealand. I want immediately to thank the Foreign Affairs Defence and Trade Committee and the officials for the very good job they have done. I particularly acknowledge the work of the chair Mr Mark Mitchell and the extremely helpful contributions of Messrs Shearer and Goff.Members of the committee who speak this afternoon—[Interruption]Mr SPEAKER: Order! This is a serious debate and I want the level—[Interruption] Order! I do not expect an Opposition whip to interrupt when I am on my feet.Hon CHRISTOPHER FINLAYSON: Members of the committee who speak this afternoon will address the individual changes that the committee has recommended be made to the legislation. I think these changes greatly improve the bill. It was always intended to contain a targeted set of measures and I believe those measures are even more targeted now than they were before the committee considered them.What I want to do is use this second reading speech to address a couple of issues that still appear to concern some people. First the question has been raised about whether the term “foreign fighter” requires a definition. The Government’s view is that the term does not need a specific definition in the bill. The bill does not create a stand-alone piece of legislation and the definition of “terrorist act” in section 5 of the Terrorism Suppression Act already provides the definition required. That definition is the core concept on which this legislation relies; adding a definition of “foreign fighter” would be superfluous.We are targeting people by behaviour or intended behaviour not by a label. The bill targets people who want to carry out a terrorist act either here in New Zealand—whether one calls them foreign terrorist fighters as the UN did or other violent extremists or something else. The actions of the people popularly referred to as foreign terrorist fighters—i.e. people who want to go and fight for the Islamic State of Iraq and the Levant (ISIL)—are just the latest manifestation of the terrorist acts already envisaged by and defined in the Terrorism Suppression Act.The second question that has arisen—and I think the Greens and others have asked it—is whether environmental activists could be caught by this legislation. The answer to that is no. Once again I refer to the definition of a “terrorist act” in section 5 of the Terrorism Suppression Act. An action by an activist would have to fall within the definition of one of the specified terrorist acts and I particularly refer members to section 5(5) of that legislation which is an “avoid doubt” clause and states: “the fact that a person engages in any protest advocacy or dissent … is not by itself a sufficient basis for inferring that …” the person’s behaviour falls under the Act. On top of that the layers of oversight we now have not least the significant powers—the greatly strengthened powers—of the inspector-general ensure this could not be the case.The third issue—and I think this is Mr Shearer’s—is whether the changes proposed in the bill still allow a person to go home to Kurdistan for example to defend his or her home. The first point I would make is that this legislation does not change the existing legal situation of a person in that position. Section 8A of the Passports Act 1992 which was inserted into the Act in 2005 by the previous Labour Government already allows the cancellation of a passport on the grounds that a person is a danger to the security of New Zealand because he or she “intends to engage in or facilitate— … a terrorist act within the meaning of section 5 of the Terrorism Suppression Act”. That section defines a terrorist act as an act that occurs “in any 1 or more countries”—and I emphasise that phrase. So this bill really is a clarification of the existing situation. In fact the only new procedure introduced by this bill is the ability to suspend New Zealand travel documents temporarily for up to 10 working days.The second point is that any person whose passport was to be cancelled would need to be intending to carry out or assist in one of the terrorist acts specified in section 5 in line with the purposes outlined in that section. As I said on the weekend the same principle applies to anyone who is planning to go overseas to engage in or facilitate a terrorist act as defined by section 5.The third point is that this bill does not go anywhere near as far as the Australian legislation which seeks to ban Australian citizens from even travelling to certain areas unless they have lawful excuse. This legislation does not prevent New Zealanders from travelling to these areas although obviously we would strongly advise against it. As I said in order to have a passport cancellation occur the Minister must be satisfied that the person intends to engage in or facilitate a terrorist act. That is the core concept to which all these provisions apply.There are a number of difficulties posed by any suggestion that we amend the definition of “terrorist act” to exempt for example a person returning to Kurdistan to fight ISIL. Firstly as I have said the bill targets terrorist acts. We do not want to equivocate on that matter. We do not want New Zealanders getting caught up in this conflict in general and we would not want any New Zealander committing any terrorist act on any side.Secondly the passport cancellation system is a system under ministerial control. It requires ministerial discretion. The Minister will have to take a number of factors into account when making a decision. Thirdly amending the definition of “terrorist act” in the way proposed could put the Minister making a decision regarding a passport cancellation in the difficult position of having to assess who is fighting for whom. That may be a more straightforward task when one considers ISIL and the Kurds but this is a chaotic and fast-developing situation. The distinction may not be so clear when considering individual areas of Syria.I do not think we want a Minister having to decide whether an intended terrorist act may be excusable or not given the circumstances making specific legislative carve-outs in the Terrorism Suppression Act. I think that would undermine the purpose of the legislation but it could also create a dangerous precedent. The main point is we do not want New Zealanders getting involved.They were the three issues that I wanted to address. As I said I am sure members of the committee who are speaking this afternoon will address particular matters that arose in the course of the hearings. The final point I want to emphasise is that this is temporary legislation—there is a sunset clause. We have a comprehensive review coming up of all security legislation and this must begin no later than June 2015. Any changes recommended in that review and passed into law will supersede what we are debating today. If new legislation is not enforced by the time the sunset clause comes into operation the provisions we are debating are going to lapse. The legislative product of that review will have a full select committee hearing and I am sure that some of the issues we have debated over the past few weeks will get another airing then. Once again I thank the Foreign Affairs Defence and Trade Committee for its excellent work and I commend the bill to the House.ANDREW LITTLE (Leader of the Opposition):I acknowledge the contribution of the Minister in charge of the NZ Security Intelligence Service to this debate on the Countering Terrorist Fighters Legislation Bill. I acknowledge from the outset that the Labour Party will support the legislation but I want to take a moment to explain the basis on which we do so.The Minister acknowledged that this bill is about meeting a UN mandate for nation States to take measures to restrict the movements of people travelling to become foreign terrorist fighters as the UN describes them. The original bill provided for greater and more intrusive powers for the Security Intelligence Service—and specifically surveillance on private properties in the original bill for up to 48 hours—and also access to Customs Service information that hitherto the SIS had not had. The original bill also provided for longer cancellation of passports of persons suspected of being a danger to security and also the suspension of passports even while such a person was overseas.In considering its stance on a bill of this nature—that is one dealing with the safety and security of New Zealanders and also providing for greater powers of intrusion—the Labour Party has considered a number of factors. Firstly is there a safety and security threat or risk that this legislation meaningfully addresses? If not we would not support it. Secondly if there is a legitimate threat or risk what is the minimum level of additional intrusive powers necessary to deal with the threat or the risk?Before we even get into these considerations we also have to consider the process this legislation has taken. On that score there is no other description for it: the process has been appalling it has been shoddy and it has deprived many New Zealanders of their legitimate right to have a say on the legislation. As the vote just now shows the process for this bill is in the hands of the Government. The Government has the majority. It can do what it wants with this bill. But just having the required majority—having the power—is never an answer to concerns about legislation that erodes citizens’ rights and freedoms.Our New Zealand Bill of Rights Act acknowledges that there will be times or circumstances when the long-cherished although not yet fully protected basic civil and human rights in that Act will be proscribed or to use the words of the Act “the rights and freedoms … may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. But when we are faced with legislation that erodes basic rights and freedoms even in limited circumstances such as this bill sets out it is vital as a matter of public confidence that it is exposed to the fullest possible public scrutiny. That has not happened here. I urge that Minister and indeed all the Government to make sure it does not happen again. Let me make it clear: Labour’s support for the substance of the legislation cannot be taken as support for a process that has shut many New Zealanders out of their basic democratic right to have a say on legislation that could affect them.Let me turn to the substance of the bill. For our part we accept there is a security threat today that is new. It was not present 10 years ago. That threat relates to the internationalisation of religious extremism and fanaticism. It has its expression in networks that spread throughout the world and we accept we are not immune. Accepting there is a security threat of a nature we may not have experienced before we turn to what is needed to deal with it bearing in mind the solemn proviso of the New Zealand Bill of Rights Act. The starting point whenever there is a claim to restrict rights and freedoms is to be sceptical.Through Labour’s representatives on the Foreign Affairs Defence and Trade Committee David Shearer and Phil Goff to whom we all—this House and New Zealanders—owe a huge debt of gratitude we challenged the need for the length of time for warrantless surveillance. It has been reduced to 24 hours which is a realistic time in which to obtain a warrant under security legislation knowing that to obtain one under that legislation is a more complex exercise than obtaining a standard police warrant for search or surveillance.More important I think in the context of this legislation are the safeguards that have now been built into any approval of surveillance without a warrant. The Minister has acknowledged those. First is the fact that the exercise of the power is confined to what is necessary to deal with an actual potential or suspected terrorist act knowing also that that term “terrorist act” is defined in the Terrorism Suppression Act which is referred to in the New Zealand Security Intelligence Service Act.Secondly the Inspector-General of Intelligence and Security has close oversight of occasions on which warrantless surveillance is conducted. The present incumbent in that role I have to say has proven the genuine independence of the role and that should provide some reassurance to us all. Amongst her powers and the further safeguards in this bill is the fact that warrantless surveillance must be reported to her. She has the power to investigate any exercise of the power of warrantless surveillance. Even where a warrant is subsequently successfully applied for she has the power to investigate the circumstances in which that warrant has been given and whether or not it is justified. Then she has the responsibility to report on the occasions on which the warrantless surveillance power has been exercised.In addition to the powers around warrantless surveillance there is also the power to cancel passports for an extended period and to suspend passports. We are reassured that there is a proper and sufficient appeal and review process certainly when it comes to the cancellation of passports such that those who have been improperly deprived of their passports and therefore potentially deprived of the opportunity to travel can seek an appeal or review in a timely manner so that they are not subject to what would effectively be a 3-year arbitrary loss of that right.We believe on balance that this bill strikes the right balance in these difficult circumstances. It is correct that there is a sunset clause. A further achievement of David Shearer and Phil Goff is to bring back or curtail that sunset clause to 2017 so that it expires within the life of this Parliament and is not pushed out to the next Parliament.New Zealanders expect this House to take their safety and security seriously and we do that. It is a difficult balancing exercise that we have to undertake but we are satisfied on balance that this bill achieves that—that it strikes the right balance and that it will ensure the greater safety and security of New Zealanders. But once again I urge the Government: please do not put this House in the position again during the life of this Parliament when it has the numbers of rushing through legislation that curtails the rights and freedoms of citizens and does so in a way that is hurried that is hasty and that deprives New Zealanders of the right to have a say. That is not the way to deal with legislation that is so important that is so serious when it has that impact on people. Notwithstanding that caution and that concern of ours we will support this bill.MARK MITCHELL (National—Rodney):I want to open by just saying that I support everything the Minister in charge of the NZ Security Intelligence Service said. Of course I want to highlight the fact that it became very clear to me during this process exactly why the Prime Minister has entrusted our security services to the hands of Minister Chris Finlayson. I want to acknowledge the Foreign Affairs Defence and Trade Committee members: my deputy chair Shane Reti; Lindsay Tisch David Bennett Jian Yang and Jami-Lee Ross; and of course David Shearer Phil Goff Kennedy Graham and Fletcher Tabuteau. David Shearer and Phil Goff—without a doubt there was a spirit of cooperation and working together. I think everyone on the committee understood that when it comes to national security matters we should be working together in the spirit that we are going to deliver the result that is best for the country. It was apparent as we got moving through the select committee process that everyone had agreed with and bought into that concept.I also want to acknowledge Mr Little. I had a conversation with him during the process and it was apparent that he too saw the need for haste which brings me to comment on a point he made about the process being shoddy. I accept the fact that the process was truncated and I made a statement during it saying that it may not be a perfect process but it is not a perfect world and sometimes we have to react quickly to a changing security environment. In this case we did have to react quickly. Our threat level was changed from very low to low which is a good thing—it means we still are at the lower end in terms of the threat we face. However it also meant we had to make some changes. Of course it was also incumbent on us to recognise and make the changes in relation to the UN resolution that was passed.We heard from the Director of Security. I personally was extremely impressed with her. I know we have a world-class director who definitely is working in the best interests of our country. Without a doubt I want to acknowledge her and her team. They are often subject to criticism but they are working hard out there day and night to make sure we maintain security and are not subjected to a terrorist attack regardless of the scale.I just want to share a couple of my own experiences. One thing that became apparent during the select committee process was that it is very difficult for people and submitters to understand exactly what we are dealing with when we cannot speak openly about what the threat is. Obviously some of the evidence we heard was heard in secret so it is incumbent upon all of us that we are unable to actually talk about it in public. However—and maybe Mr Shearer may take the same opportunity to speak—in a previous life I was able to see personally some of the threats we face.There is one story I have related previously in this House about a situation in Iraq. It is going back a few years now but it is certainly still relevant to our situation today. A supply convoy was attacked in Iraq. During the attack a satellite phone was taken. It was taken by al-Qaeda terrorists and they made several calls while they had the phone. In fact they made well over 200 various calls around the world. What was significant was that I cannot remember the exact number now but I think it was about 15 or 16 calls were made from Iraq by an al-Qaeda terrorist cell to New Zealand. So we would be naive to believe we are somehow inoculated or because of our geographic location we are insulated from these types of threats and there is no exposure.Another example I want to use is some information that was shared with me in the last week. There was actually a list that was recovered from the Islamic State of Syria and the Levant fighters. It had a lot of information on it including call signs operation orders and also nationalities of fighters who were expected to be or who were already on the ground fighting with them. They were from the Netherlands the UK and also Australia. But also on that list was New Zealand. This is information that is fresh—within about a week. So I hope it is clear we did actually have to move quickly. We did have to act quickly. We have now got another layer of protection wrapped around us a nation as we move into Christmas and our festive and holiday season. I feel very proud of the fact that as a House we have been able to move the process through the select committee.Just very quickly one commitment the committee made was this. Every submitter who wanted to appear and make an oral submission to the committee was given the chance to do that. The committee agreed to work long hours and into the weekend to make that happen.Finally I just want to acknowledge our advisers and our secretariat staff who were with us every step of the way. They provided us with great support and advice—the support we needed to actually make this happen and get this bill back into the House. Thank you.DAVID SHEARER (Labour—Mt Albert):As has been said Labour will be supporting the second reading of this bill. The bill that is before us today is quite a bit different from what started out at the first reading and that is a result of a pretty painstaking process that people have spoken about and a reasonable amount of cooperation across the Foreign Affairs Defence and Trade Committee. The issue for us was really to attain a balance—a balance between the safety and security of New Zealanders on the one hand and the protection of their privacy and their human rights on the other. I believe on balance that we have attained that balance in what we are presenting back to the House today.We were able to hear about some of the risks that New Zealand faces. We were able to have the SIS speak to us in secret and we called it back to get further clarification as well. I do not want to over-egg the pudding on the risks to New Zealand. There has been a lot of talk—I think wrongly—about beheadings in the street and that sort of thing but there is no doubt that the number of incidents and the threatening environment has changed. We have gone from a domestic threat level of very low to low so let us get it in context. That is not extreme as it is in the UK or high as it is in Australia—it has gone from very low to low. Nevertheless the risks that we heard about and the growth in those over the past few months are the underlying context in which this bill has come through.On the basis of that our approach in the Labour Party was very much to be narrow and conservative in terms of what we wanted to change. We did not have the luxury of a big review. We therefore had to confine ourselves to what we had heard in terms of a potential terrorist threat that may come to New Zealand. With that approach we looked at constraining the legislation as it stood in making the changes that we needed to make.Andrew Little has talked about the process. The process was farcical. That was one area that I do not agree with the other side on in terms of the way those members saw the process. We accelerated this bill through in 2 days. The people who wanted to make submissions—and there were 600 people who made submissions—had to do that in the space of 2 days. We knew that this threat was emerging well before the election and yet this Government did not do a review before the election that would have enabled the legislation to be put in place straight after the election. I think that was a mistake. Nevertheless we heard as many people as we could. We do not know how many people would have liked to make a submission but did not hear about it or could not. But nevertheless we worked right through the night on Thursday Friday and Saturday morning in order to be able to do that.I believe that there is an issue that still deserves a greater degree of focus and that is the plight of our Muslim community. We have about 46000 Muslims in New Zealand. They appeared in front of our select committee and made submissions. Their basic message was: “We are the people on the front line. We are the people within this Muslim community from which some of these threats might emerge. When we hear about these it is in our interests as New Zealanders and as New Zealand Muslims to ensure that they get picked up on.” and I think what they were saying was: “Yet we are not listened to sufficiently.”Sam Lotu-Iiga the Minister for Ethnic Communities and the Prime Minister have yet to meet the Muslim community or accept an invitation to actually meet with them. As the community said when it comes to halal butchery and slaughtering techniques which New Zealand earns hundreds of millions of dollars a year from they are feted and they are accepted and they are listened to but when it comes to something like this where their community is at possible threat they are not. I think that we need as a matter of urgency to acknowledge and bring those people in.It has been talked about that this is an ad hoc piece of legislation. It is on the books only from now until April 2017. I think that is appropriate. It was going to be there until 2018 but we brought that back to this term of Government. It is pending a much wider review in which we hope there will be—certainly it is envisaged and the Government has said this pretty clearly that it wants to have it—a much broader examination of the issues in front of us.There were three or four major areas where there was change. I want to mention a couple of these. The first was warrantless surveillance. This was a step on principle that all of us I think found objectionable—that you would have surveillance without a warrant even though the warrant would be being sought in parallel with the surveillance. The argument for it was on the basis that sometimes things have to move quickly and we were given two or three examples of where that might be used.I believe that what we have done with enabling that to go ahead is we have brought back the warrantless surveillance period from 48 hours to 24 hours. We have ensured that the Commissioner of Security Warrants and the Minister obviously get told about that immediately. We have brought the Inspector-General of Intelligence and Security in on every single occasion where surveillance pending a warrant happens and even if that surveillance does not proceed through to a full warrant that information will still be passed to the Inspector-General of Intelligence and Security. The inspector-general will look into that and ensure that any information that was gathered is destroyed. Lastly the SIS is obligated to publicly report every 6 months on the number of occasions that warrantless surveillance occurs so that we ensure the public knows what is going on as well.The second issue was about visual surveillance. The police are able to conduct visual surveillance but their threshold is much more fixed and much more contained and it relates to very serious offences that carry a penalty of up to 16 years’ imprisonment. The SIS operates in a much much different way.We had a long period of debate around the ability to allow the SIS to do visual surveillance. In the end we brought it back to what we were doing with this bill which was to look at and counter the issue of terrorism and the threat of terrorism. We did not want this bill to be the back door by which the SIS was able to conduct surveillance more generally so now in the bill it is confined to where there might be terrorist activities and obviously still on the basis of a warrant. There is the ability for the SIS to access the Customs Service database. Again that is under very strict scrutiny. The access is to only the parts of the database that are appropriate and the Inspector-General of Intelligence and Security has the ability to monitor where each of those selected individuals might be going.On the issue of extending the cancellation of a passport from 1 year to 3 years we disagreed with the Government. We did not understand why that needed to be extended out to 3 years. There are additional safeguards around somebody who has their passport withheld because they are believed to be a foreign fighter going off to fight in a terrorist organisation. That will give us more comfort that the bar that needs to be attained is a very high one.Lastly I want to thank the Minister for the clarification on the difference in definition between a freedom fighter and a terrorist. We wanted to ensure for instance that if you wanted to go off and fight in the Spanish Civil War you were still entitled to do that. What we sought and got from both the Department of the Prime Minister and Cabinet and the SIS was that the bill was going to constrain only those people who were going to carry out terrorist acts or fight with a terrorist organisation and as long as that is the case we are pleased about that.Lastly can I just say that all of us I think were very impressed with the role of inspector-general the powers she has and the way that she is approaching her job. I think that is something for the review in the future—that we look at that role and even enhance that role because I believe that that will give New Zealanders greater confidence about the way that our intelligence agencies operate and are able to be overseen.Dr SHANE RETI (National—Whangarei):Firstly I would like to acknowledge the Foreign Affairs Defence and Trade Committee under the guidance of its chair Mark Mitchell and collaboration with colleagues from across the House. At this reading I would like to speak to the process that has been highlighted and then the content of this bill.The case has been made that the time frame was challenging and we have accepted that and we would like to sincerely thank all the submitters. But we should note that there is a precedent for the process and against that precedent this is a good outcome. Let me explain. On this bill the committee heard 63 oral submissions. A similar bill in 2011 the Video Camera Surveillance (Temporary Measures) Bill was also seeking to balance privacy and freedoms with security and on a similar time frame the select committee concerned heard 20 submissions. This committee heard 63. Further a bill with much similar content the 2012 Search and Surveillance Bill had its first reading on 4 August 2009 and submissions to the Justice and Electoral Committee closed 1 year later on 3 September 2010. One year later 29 submissions had been heard; this committee heard 63. Of course that is not everyone’s voice and that is not the case I am making; rather that on precedent the best was made of a challenging time frame.I would like to speak to the safeguards in this bill and there are at least three. The first safeguard concerns warrantless surveillance. Many submitters talked about their concerns about warrantless surveillance and this is and always will be a legitimate concern. However this bill does not introduce warrantless surveillance for the first time in New Zealand. This is not new functionality. Section 48(1) of the Search and Surveillance Act states: “An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant”. So warrantless surveillance is already in legislation. The difference is that in the Search and Surveillance Act the permission is for gathering information about a crime and in this bill the permission for warrantless surveillance is for the gathering of intelligence.The second safeguard is around passport cancellation. Passport cancellation already exists under the Passports Act and we need to be clear that cancelling a passport does not cancel citizenship. These are unrelated not linked and not part of this bill. If people have their passports cancelled while travelling the Passports Act states that they will receive travel documents to return to New Zealand.The third safeguard measure is that there are I believe satisfactory criteria that must be met before actions in this bill can be undertaken and many independent review and reporting measures that support this bill. This includes review by the Commissioner of Security Warrants and the Inspector-General of Intelligence and Security.Also the penultimate sunset clause defines the intent of this bill as temporary. Much was done in the select committee to address the legitimate issues raised by submitters and committee members in this regard.So much of the logistics of this bill are already in legislation such as warrantless surveillance and passport cancellation. What this bill does then is extend the application and it is my belief that this bill is a good outcome for the process and the security needs we have. I commend it to the House. Thank you.Dr KENNEDY GRAHAM (Green):The Foreign Affairs Defence and Trade Committee has now reported back on the Countering Terrorist Fighters Legislation Bill. The Green Party will have something to say in the Committee stage about the drafting. Let me address the issue of substance now to the extent that it was considered by the committee.The Green Party had opposed the introduction of the bill not simply its draft content. We alone voted against it in the first reading. Like all other parties we entered the committee’s work open to persuasion but unlike most others we were listening for the fundamental reasons for the bill in the first place. The committee received as has been mentioned 588 submissions; it heard 63. The other 525 remained essentially unread by the committee during the hearing process because of the perversely truncated time it was allowed to perform its democratic function of listening to the people. The very passage of the bill impugns the democratic standards it is designed to protect. We were briefed twice by the Director of Security to gain an appreciation of the need as claimed for the expanded State powers. Nothing we heard persuaded us that our initial underlying concern with the bill was misplaced.We do not deny that the world is a dangerous place. We are not oblivious to the rise of the Islamic State of Iraq and the Levant (ISIL). We are aware of United Nations Security Council Resolution 2178. But the primary case for the legislation according unprecedented State powers to not just the police but the SIS has not been made and the political foundation for the legislation is weak. UN member States have an obligation under the Charter to maintain international peace and security. This includes measures to combat international terrorism. Collective action to this end however is not new. As long as four decades ago the United Nations General Assembly invited member States to take all appropriate measures at the national level with a view to the speedy and final elimination of international terrorism. Concerns over the 2015 Cricket World Cup cannot be higher than those that stemmed from the 1972 Munich Olympics yet New Zealand had the wisdom not to overreact then. The strategic decision after September 2001 to regard terrorism as an issue of international peace and security rather than of global and domestic crime has had fateful consequences for political judgment everywhere ever since.New Zealand as the smallest fast follower among the “Five Eyes” espionage network has suffered the most in loss of clarity regarding its role as a responsible global citizen. Through pure contagion it has imported a vicarious threat level from its four partners that is inappropriate to its own geostrategic position and its distinctive political culture. In calibrating its response the Government is unduly influenced by its “Five Eyes” espionage partners which have attracted higher threat levels and it has not had sufficient regard for the other 188 member States.The rise of ISIL in 2014 raises the threat level but the change is not qualitatively different from before and does not therefore justify the expansion of State powers of the kind proposed. In making the political case for the legislation the Prime Minister has described how our risk and threat profile is changing. Much of that he explains is due to the rapid rise of ISIL which has seized substantial territory decreed national borders between Islamic States to be invalid and used brutal methods. The ability of ISIL to motivate Islamic radicals as well as its ambition resources and methods make it a brutal threat to stability not only in the Middle East but regionally and locally too. The rise of such a well-resourced globally focused terrorist entity that is highly skilled in recruitment and social media is a game-changer for New Zealand the Prime Minister says.ISIL has successfully recruited New Zealanders to its cause and there is a watch-list of about 40 foreign fighters plus an equivalent number in or from New Zealand who are participating in extremist behaviour. Some have been fighting in Syria. Some are attracted to carrying out domestic attacks in New Zealand of the type recently prevented in Australia and successfully carried out in Canada. Should they return to New Zealand fully radicalised and with fighting skills they would represent a significant threat to the safety of New Zealanders.In light of all this the Prime Minister concludes there is “an immediate threat to national security”. This justifies he thinks the Government’s response: expansion of intrusive powers by the State and a resulting erosion of privacy and civil liberty longer cancellation of passports SIS access to Customs Service data visual surveillance by SIS hitherto confined to the police and 24-hour SIS surveillance without a warrant. These changes he says will “strengthen our national security settings”. The Prime Minister’s “immediate threat to national security” is not matched by the official change in New Zealand’s threat level which has increased only from very low or highly unlikely to low or possible but not expected. There is some cognitive dissonance between the excitable political narrative and the official judgment. The case is advanced for an unprecedented expansion of intrusive State powers in response to a possible terrorist act that is not expected. The case is not made. The bill is an overreaction to the true content of United Nations Security Council Resolution 2178. That resolution requires member States to ensure that their laws are sufficient to combat the threat leaving it to their discretion to judge what those might be consistent with international human rights refugee and humanitarian law.The political foundation for the legislation is weak. The day the bill was introduced the independent Inspector-General of Security and Intelligence released a report with findings on actions by the SIS and the Prime Minister’s office in 2011. These included disclosure of incomplete inaccurate and misleading information; significant errors in considering media requests; a failure to safeguard political neutrality; a lack of trust and confidence with the Leader of the Opposition; and an insufficiently rigorous and careful approach in handling security intelligence. Separately staff of the Prime Minister’s office had disclosed to the media for political purposes information supplied by the SIS. The report recommended that SIS staff be trained in the release of information and that published guidance be developed on their political neutrality obligations.It is in the context of these shortcomings—corrosive of public trust in the most sensitive areas of State power—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 be less opportune. There is a need for proven rectification of the shortcomings in both the SIS and the Prime Minister’s office and a consequent restoration of public trust in these institutions before any such bill could even be contemplated.As I said we shall speak to the drafting of the bill in the Committee stage but our fundamental opposition to the bill is this. Under legislation designed to combat foreign terrorist fighters engaged in the Middle East the New Zealand SIS will have the power in respect of all New Zealanders to access Customs Service data and covertly plant cameras anywhere in their homes including without warrant. The justification for expanded State powers is ISIL terrorism in the Middle East but those powers extend to “local extremists”—undefined—carrying out serious environmental or economic damage in New Zealand. This is wrong and unacceptable.Rt Hon WINSTON PETERS (Leader—NZ First):As has been the case since New Zealand First was created over 21 years ago the core principle of our party is one of love for our country. We in New Zealand First are proud of New Zealand and we believe we have a duty to protect it from all enemies. We believe there is a historic obligation to protect our culture and our heritage and this obligation requires every member of our party to advocate in the strongest possible terms for a strong defence force for the rule of law and for safe and secure borders. Only when these requirements are met can the country develop according to the will of the New Zealand people. We have a unique culture and heritage and we as a party believe that it must be preserved and strengthened no matter what the cost. We believe that the primary concern of any responsible political party is national security and we take national security seriously all of the time and on all policies.New Zealand First opposes this bill for a number of reasons. First we agree with the concerns on this bill raised by the New Zealand Law Commission and we note that although improvements have been made at the Foreign Affairs Defence and Trade Committee to some areas identified by the commission many areas leave much to be desired.Second this Parliament in 2007 removed from the Crimes Act the crime of sedition. There was one party and one party alone that opposed this repeal and voted against it. That party was New Zealand First. The crime of sedition is still needed now. It simply must be a crime—as it was when we had sedition on our books—“To incite procure or encourage violence lawlessness or disorder; or … To incite procure or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order;”. Its repeal was ill-considered and ill-founded by the very people who stand up today and say: “Trust us. We are your sentries and guardians and protectors.” What is their record? Many of those responsible for repealing it are right here in this House. We will move in the Committee stage to reintroduce the crime of sedition.Third we do not have enough confidence or trust in the Security Intelligence Service given some of its recent offences and serious shortcomings to allow this organisation such widely increased powers of surveillance. Let us not forget the case of Rajesh Singh. Mr Singh is a former Fijian Government Minister democratically elected by the people of Fiji. His Government was overthrown by Frank Bainimarama in the military coup of 2006 and he—Mr Singh—fled to Auckland. In 2012 his premises were raided by the SIS and police. The pretext was that he was about to engage in a foreign offshore terrorism act. What is interesting about this case is that as he was about to be raided he received a text message from a senior army officer in Fiji telling him that he was about to be raided. I have seen that text message. How on earth could a senior army officer in Fiji know that the New Zealand SIS was about to conduct a raid on Mr Singh who was lawfully living in New Zealand?The subsequent actions of the SIS and the police during the raid are cause for grave disquiet as is the case of Mr Tony Fullman. Mr Fullman had his passport cancelled by the Department of Internal Affairs on the advice of the New Zealand SIS on 17 July 2012. Why? Because he also was alleged to be about to partake in a foreign act of terrorism. The claim was without any merit and within a year the Government back-pedalled on its decision and wrote to Mr Fullman to say that he could now have his passport back and said—because it has always been very charitable this Government—that he would not have to pay for the application replacement fee. [Interruption] Does that not make you feel good?Then of course there is the case of the Government Communications Security Bureau (GCSB) and Kim Dotcom. How on earth could the GCSB not know that Dotcom was a New Zealand resident or the Prime Minister not know that he was living in his electorate? And when exactly was the Prime Minister made aware of Dotcom and the GCSB raid? He has never admitted foreknowledge at all.Hon Dr Nick Smith: He didn’t know.Rt Hon WINSTON PETERS: Oh he did not know. Here he goes again—“know nothing - ism” from the expert of “know nothing - ism” Nick Smith. There is a smell around this but let us be frank. What this bill is really about is much wider surveillance powers and the Prime Minister has been covert about it all the way until just after the election. In June it was no worries no engagement no concerns a long election campaign—one of the longest we have seen in modern times—and he never mentioned it. But he has been running around offshore making promises to all and sundry and now he is being deliberately evasive with the New Zealand public.The Government and others say that they are all concerned about security. We have seen time and time again the problems that uncontrolled immigration policies create but what was their response? To never do a thing about it. From Paris to London and even to Stockholm we have seen riots in the streets honour killings terrorist attacks and terrorist plots.In 2005 I asked the Minister of Immigration about the case of one Asha Ali Abdille a Muslim refugee from Somalia. I asked the Minister: “Is he confident that Asha Ali Abdille the refugee sickness beneficiary whom he ordered an inquiry into last year and who has a string of criminal convictions is not a threat to the New Zealand community; if so why?”. He said she was not. Then 3 years later she tried to hijack Flight 2279 from Blenheim and attempted to get the pilots to fly to Australia. They refused and bravely fought back along with other passengers on the plane and eventually subdued her. But in her attempt to hijack the aircraft at knifepoint she wounded both pilots and one passenger. She was sentenced to 9 years at the New Zealand taxpayer’s cost.This sort of repetitive behaviour and the “know nothing - ism” about whom we are bringing here we in New Zealand First are sick of and we are not going to have those people get up in this House and all of a sudden be the new sentries and guardians of our society.No one in this Parliament or in the media can possibly say that New Zealand First is not tough on security for our national defence.Jami-Lee Ross: Weak.Rt Hon WINSTON PETERS: Oh “Weak.” he says—“Weak.” he says. He has got no idea whom he has brought in from the Middle East. Those members encourage them to come here in their thousands and there is Jami-Lee Ross sitting over there saying we are weak. Look ignorance is not bliss. Ignorance Mr Jami-Lee Ross is not bliss and the fact is that no one is going to believe you.We in New Zealand First take the issue of terrorism—and the Islamic State of Iraq and Syria (ISIS)—very seriously all of the time and on all policies. We have known all year—not just after the election; we have known all year—about ISIS. Do those people not watch the international broadcasts the media and all the advice coming out of the Middle East? Or is the blind ignorance in the research unit all that they rely on or is it the Prime Minister’s assurances? We have known all year about this threat and we know that radical Islam is a growing threat as well. We have known that for a decade so what is so new now?The fact is that we want our immigration system tightened up. We want our border security tightened up. I do not want to hear that we have got 20000 overstayers—give or take 2000—here in a modern computerised age. I do not want to hear that we do not know what is going on. I do not want to hear that I am the only guy who could find a person who was the former agrarian Minister who had come out of Iraq and that none of the lawful authorities in this country could find him—nor for that matter could any of these people now posing today.The PM cannot be trusted. The SIS was caught playing dirty politics spying on the most senior Opposition MP. The PM is still not being honest about the imminent deployment to Iraq of our armed forces. We know that our troops have already been told that by the end of February-March they will be off. He is still denying it and the Minister of Defence is denying it in this House as well.More seriously the Government has put up this law at breakneck speed with the fastest change I have ever seen in this House on a matter so serious. It has rammed it through the select committee and it thinks we are going to comply.There may be parties in this Parliament at the moment that look alike and sound alike on this matter and that have got the same record but it is not our record. It is not New Zealand First’s record. We know that this bill came about as a result of a review that we were never briefed on. A law review is coming next year—no doubt we will have new law then—and in the meantime we are asked to cry havoc and let loose the dogs of Nazism when it comes to people’s homes. The surveillance—when you have got video surveillance is it 50 metres or 500 metres? All these people are swept in and too many people are supporting this legislation without knowing just how technically wide and unfair it could possibly be.DAVID BENNETT (National—Hamilton East):That was a disgusting speech from a party that should not be proud to be in this House. New Zealand is a country made up of people from different religions different races and different cultures and people have come to this country at different times. They are all New Zealanders and how dare that party over there say that it holds up New Zealand’s security when all it wants is the 1950s. New Zealand First wants to return to the 1950s—that is all that party wants to do. It does not stand for protecting New Zealanders and let nobody in this country ever take the garbage from that party that it actually believes in New Zealanders.We sat in the Foreign Affairs Defence and Trade Committee. Members sat there and they heard from the Muslim community and David Shearer rightly acknowledged that in his speech. Fletcher Tabuteau should have been speaking on this bill. It became just an attempt by his leader to take it over as an immigration speech and that is disgusting from that party.This bill is good for New Zealanders. It protects New Zealanders. We had to do it at this time. It is something that as a Parliament we have to deal with at this time. Dealing with the immediate pressing concerns is not something we could leave till next year. It is something that came to New Zealand’s attention in recent times. We are not England or Australia which have not had to go through a general election and lose that period of time when they could have made legislation. This bill does not even attempt to go as far as the English and the Australian legislation which is already embedded in their parliaments. This gives new powers to our security agencies but they are powers that are needed to protect all New Zealanders and not the 1950s cliché that Mr Peters wishes to represent.Mr DEPUTY SPEAKER: I call Catherine Delahunty—5-minute call.CATHERINE DELAHUNTY (Green):Tēnā koutou e te Whare. Before I talk about some of the aspects of the bill in this second reading in terms of human rights and civil liberties because human rights is my portfolio I want to ask some questions. The reason why the Green Party is not supporting the bill is that the questions have not been answered to our satisfaction. I recognise there has been work done and answers given but they are not to our satisfaction at this stage.The first one is: is there an immediate threat? I think it is hard to argue that the world is safe or has been safe for a very very long time. In fact ever since September 11 and our participation in the Afghani issue our country has been unsafe to some degree but not to a very high degree and I think it is hard to argue that we are more unsafe than we have been for quite a while. We have sided with the “Five Eyes” in various wars either directly or indirectly which has created a level of risk. That is a choice that has been made by Governments not by the Green Party and we are yet to be convinced that there is an immediate threat that means that rather than wait until June 2015 for a full security review it is necessary to introduce this legislation under urgency and I will talk about the process for the public in a minute.Do we have police powers already to address serious criminal acts? Yes we do. That is my understanding—we really do. Is the SIS neutral and have we forgotten what happened on the very day this bill was introduced in terms of the SIS’s relationship to an abuse of power and a lack of neutrality? Many people in the public have not forgotten and the Green Party has not forgotten. How do we actually stop recruitment to terrorism: through more violence and surveillance or by making an investment in communities where that risk could possibly arise? How do we support the Muslim community for example—although this bill is much broader than that—to be treated with respect and how do we assist it to be part of a process of de-radicalising people who might be at risk? Why can we not wait until next year? Also what is the definition of “extremist”? There is a considerable debate about the word “extremist” the word “terrorist” and about what they actually mean and where does that sit?We would have to know what those things are before we could possibly vote for this bill because warrantless surveillance visual surveillance etc. are all serious issues for people who could be categorised as terrorist or extremist and whose actions have been associated with guerrilla warfare liberation struggles or even non-violent action in this country. What was once a small but progressive country making a huge global contribution could now possibly be one of the most conservative in this regard particularly in the way in which this bill has been forced through.So I just want to talk a little bit about the 525 or more submissions not heard in person and also the many people who could not submit because they did not even know that there were only 2 days available. I want to pay credit—total credit—to the Kiwi citizens who actually showed the Government up and made thoughtful informed and committed submissions on this issue. I acknowledge that the Foreign Affairs Defence and Trade Committee did a huge amount of work to hear them and I support every word that my colleague Dr Kennedy Graham said when he talked about this process. I would like to thank the civil liberties and human rights groups. Many thanks go to those submitters who are Muslim New Zealanders for their vital reminder to the select committee about the impact of this legislation including the increase in personal abuse that has occurred since the Prime Minister started justifying this extension of spy powers and creating more fear and more paranoia towards the Muslim community.The modifications in this bill were predictable. There is more oversight of the SIS which is a good thing and the change to the time frame for video surveillance without a warrant was a predictable change. It was always built in that the Government could gain the Labour Party’s support by backing off on those issues. That was entirely to be predicted but actually it does not make much difference—24 hours or 48 hours with no warrant is still an unacceptable trade-off that we cannot live with.The biggest problem we in the Green Party have is this bill’s rationale and the barely explained urgency that is forcing it through this House. Why have we rushed to push the panic button? Who is telling us we must do this? If we are so concerned about foreign fighters why does the bill create broad powers? From where we sit this looks like broad powers to allow for some giant fishing expeditions for some fish who may be very very small or very very large but who will not have the basic rights that citizens of this country ought to have and who will be subjected to surveillance. I want to quote just briefly from Amnesty—Mr DEPUTY SPEAKER: I am sorry to interrupt the member. Her time has expired. Marama Fox—a 5-minute call.MARAMA FOX (Co-Leader—Māori Party):Kia ora e Te Mana Whakawā ō tātou mate takitini e takoto mai rā i runga i ō tātou marae maha i runga i ō tātou papa kāinga i roto i tō tātou Whare kua ūhia rātou ki ngā taumata kōrero e tika ana hei poroporoaki i a rātou.[Thank you Mr Speaker and in regards to the myriads of our deaths lying there upon our many courtyards home settlements and in our House fitting tributes of farewell have been accorded and cast over them.]The Māori Party stands at the second reading to oppose the Countering Terrorist Fighters Legislation Bill.If I was to take a walk just 5 minutes down the road to the Wellington Railway Station I would see the impressive bronze statue of Mahatma Gandhi. At the statue’s unveiling in 2007 Mr Ernest the Indian High Commissioner said: “On India’s part the gifting of the statue is an expression of our deep appreciation and acknowledgment of the commitment of the people of New Zealand for setting an example to the world of a tolerant open and inclusive society”. How is this relevant to the bill on countering terrorism? It has everything and nothing to do with this legislation.The major concern for the Māori Party is that the bill seeks to change the law to allow the New Zealand SIS to conduct surveillance activities without a warrant “in situations of emergency or urgency”. It then allows the Director of Security to authorise surveillance activities to be undertaken “in situations of emergency or urgency”. So how does this connect to Gandhi? The statue immortalises our nation for its tolerant open and inclusive society yet it is noteworthy that our champion of peace Te Whiti o Rongomai is not honoured similarly with a statue of his own.And where is the link to this legislation? Where it is explicit is that Te Whiti o Rongomai was the leader of Parihaka a Māori village in Taranaki. Te Whiti was one of those great leaders alongside Mahatma Gandhi Martin Luther King and Nelson Mandela and yet his story is relatively unknown in our official histories. His story dates back to 1880 and the West Coast Settlement (North Island) Act by which any Māori in Taranaki could be arrested without a warrant and jailed for 2 years with hard labour. Te Whiti was arrested and then held under the West Coast Peace Preservation Act of 1882 without warrant charge or trial and jailed for 3 months. These two Acts are a precedent for the legislation that will be passed today—a bill that will pass into law measures to introduce surveillance without warrants.Warrantless surveillance is warrantless surveillance whether it is for 48 hours or 24 hours. It makes no substantive difference. We have been here before. We have brought into law legislation that does away with basic human rights through the initiative of warrantless search and surveillance. Although we welcome the fact that the amended bill has cut back the time frame for the Security Intelligence Service to conduct surveillance without a warrant from 48 hours to 24 hours it is the principle at stake. Our constituents have clearly told us they do not trust the authorities with such extraordinary powers.Of course we are as concerned as any party with the increased threats and we accept the need for robust measures to be in place to ensure that spy agencies can respond rapidly to terrorist threats hence the reason we disagree with the urgency under which this legislation is being considered. But with the shameful history of this nation and its disproportionate treatment of Māori under a questionable surveillance regime we cannot willingly allow the rule of law to be cast aside to increase opportunities for spying on New Zealanders. Te Whiti o Rongomai and Tohu Kākahi in the 1880s the alleged Operation Leaf in 2004—which supposedly gathered political intelligence on Māori though wire-taps and computer hacking—and fast-forward to 2007 the people of Ruātoki and Tūhoe and Operation Eight. Just to be clear: we do not believe that a warrantless search can be justified under any circumstances.We appreciated the changes made by the Foreign Affairs Defence and Trade Committee and we are gravely concerned about the rapidly evolving threat of terrorism both locally and internationally but we truly believe that the capacity and capability of our safety and security measures can be increased without compromising on basic citizen rights—compromises that with overtones of racial profiling may well infringe the rights of Māori just as has happened in the past. Although there are considerable changes the bill has not been subject to a full process of public scrutiny and still poses a number of issues. We therefore continue to oppose it.JAMI-LEE ROSS (National—Botany):It is common when members on this side of the House rise to speak to say that it is a pleasure to take a call on the bill. It is an often overused phrase that we use on this side of the House and possibly one that is not quite appropriate on this bill. It is not a pleasure to have to be talking in the House about increasing powers for surveillance because our country is under threat. But the very fact that there are threats out there that are emerging in this world and emerging at quite a fast pace leads us to the situation where we do have to be talking in this House about an issue like this. Members and the public have already acknowledged that this bill is making its way through Parliament at quite a fast pace. We accept that. We also accept and understand that there is a need for this bill to be progressing at the pace that it is.The Foreign Affairs Defence and Trade Committee members worked very well together over the past week or so to ensure that this bill came back to the House in the best possible manner in which it could. I do wish to join my colleagues in acknowledging the select committee staff and officials who supported us. I also want to acknowledge the bipartisan approach that the committee took as well. We National members did work extremely well with the Hon Phil Goff and David Shearer. We also worked very well with Kennedy Graham who ultimately ended up opposing the bill and we always knew that would happen. We also worked very well with Fletcher Tabuteau. I think that if the speech from New Zealand First had been given by Fletcher Tabuteau we would have had a far more informed speech on the bill not one of the general rants that Mr Peters has. We would have had a very informed speech and Mr Tabuteau did make some very good contributions in the select committee that did help to improve the bill. Those contributions from members to improve the bill came from all sides of Parliament. We did genuinely work very well together to try to improve the bill.We heard submissions about the need to reduce the warrantless surveillance time from 48 hours to 24 hours. Some called for less; some called for that power to not be inserted at all. New Zealand actually already does have warrantless surveillance power in extraordinary circumstances for the police. This is simply a change to our statutes that would allow the SIS to have that warrantless surveillance power as well. It is an extreme power. It would be used very rarely but it is going to be put in the legislation for those emergency situations that the country might find itself in. To understand the reason why the warrantless surveillance power is needed you have to remember that to get a warrant under normal circumstances for surveillance requires the Minister and the commissioner to sign off on it. You can probably imagine quite easily circumstances where the country’s security would be at risk if those two individuals were not available in an emergency situation and that is why this power is needed.We also received submissions around the need to tighten the scope for which surveillance can be undertaken; we did that. We received submissions around reducing the time frame for which the bill would operate from 3 years to 2 years; we did that. We also received submissions about increasing the fine if surveillance information that was acquired is not properly destroyed when it is required to be and we have made changes to that provision as well. The select committee members worked very well together to improve this bill as much as we possibly could. We have a much better bill now before Parliament and I hope it continues to enjoy wide support in the House.Hon PHIL GOFF (Labour—Mt Roskill):If substantial changes had not been made to this bill by the Foreign Affairs Defence and Trade Committee I would not be standing up here prepared to support it through its second reading and remaining stages and nor would the Labour Party.Frankly the process by which this bill has been handled was an absolute travesty and I say that with due respect to Jami-Lee Ross’s comments about the way that the select committee members cooperated. They did cooperate and they did get a better bill out of it. But to bring in a bill and in 2 weeks take it from first reading through to the final reading which will happen this evening is not good enough. It is against the democratic process of this House and against the right of New Zealanders to be properly consulted on and participate in legislation. The very worst type of process to ram through in those circumstances is a piece of legislation that gives substantial powers to a body that operates in secret because of its very nature.What we should be doing in this House is not only going through legislation comprehensively and thoroughly and maximising the public’s right to participate but we should be building up the public’s confidence that the powers that we give to organisations are properly put in place. When you have 2 days—just 2 days—for the public to prepare and present submissions it is not the way that a democratic process should operate.Ironically normally we would have advertised this bill across a range of newspapers and it would have been less high-profile than it was. It was the Government’s decision to act in this way that got it on Television One and TV3. The submissions flooded in. We got just under 600 of them and we would have had more submissions but for the fact that that the web went down under pressure on a couple of occasions.I have got to say that there was one thing in common amongst all the submissions that were made on this bill. Whether it was the lofty New Zealand Law Society with a submission prepared by 10 of our most eminent jurists in the country or whether it was by the New Zealander who was making his or her first ever submission to a select committee they all said one thing. They said: “This process is wrong. It stinks. You can’t expect us to respond in 48 hours and do the job that we need to on this legislation.”This legislation should never have gone through in this time frame. If it were not for the fact that we worked extraordinary hours to hear everybody who was capable of getting to the committee and for the fact that the Government relented on its determination to push through things under urgency that were not justified to be pushed through under urgency we would not be supporting it.I have to say that one of the downsides of the way that we dealt with the legislation was the way in which the community that feels that it is the most targeted and affected by it was not engaged as thoroughly as it should have been—that is the Muslim community. David Shearer and I met with members of the Muslim community early on when this bill was first being talked about. They expressed their concerns to us about it and they expressed their concerns to the select committee. Their concerns were of a number of different natures. One was that they said they are New Zealanders: “We are not Muslims in New Zealand; we are Muslims from New Zealand. This is our country. Why is it that we cannot get to talk to the Prime Minister about something that we think will intimately affect the lives of our community? We cannot even get to talk to the Minister for Ethnic Communities. They did not have time.”—they did not have time. They said to us: “It is funny that when it was about halal killing of export meat when the markets were closing and the Government desperately needed the help of the New Zealand Federation of Islamic Associations the Ministers were over us like a rash. But when it is about us and the impact that this is having on us they are not to be seen.”They said—and there were a number who made this point—that because this awful organisation called Islamic State of Iraq and Syria (ISIS) or Islamic State of Iraq and the Levant misuses the name “Islamic” the more the community hears the name “Islamic State” the more it thinks that people who look different because they have a beard or wear a head shawl must be terrorists. What we were getting from the Muslim community were comments that they were being abused in the streets and they said it did not help when the Prime Minister talked about beheadings.I have got to say to my colleagues in New Zealand First that it does not help when your leader Winston Peters talks about how we should not be bringing these people in from Muslim countries—if I heard it right. I have got an electorate full of people who have come from the Middle East to escape oppression and have come here for a better life for their families. They are decent New Zealanders. They are hard-working. They are so grateful for the chance to have a decent and peaceful life in this country. I have got to tell you that when there is a problem in the Muslim community because some hothead or idiot talks about doing terrorist acts they are the first to come down on those individuals and put them in their place. If they cannot do it themselves they are the first to go to the authorities and report it.If we want to know what will protect us most against terrorist acts in this country it is not just this piece of legislation—it is mainly not this piece of legislation. It is about the fact that we have developed in New Zealand by and large a harmonious and an inclusive community; it is about the fact that the people in our Muslim community are decent people and moderate people; and it is about the fact that through not engaging in the Iraq war in 2003 which was built on a lie and because we are fiercely independent about being a nuclear-free New Zealand the world sees New Zealand as an independent country and a decent and a fair country. Those are the things that most protect us against terrorism. If we lose those things then we are at greater danger.There is a role for security services in New Zealand. There are people in this country who are alienated and who are personality disordered—that is the kindest way I can describe them. When they get a twisted philosophy such as the ISIS philosophy that tells them—online all the time—that they should be out there committing terrorist acts and they will be rewarded with martyrdom and life for eternity because they do it that is a risk to New Zealand.I do not want to exaggerate the risk. Our threat level set by the Government is low. “Low” means “a terrorist attack is possible but not likely”. It is ironic because in Australia across the Ditch it is at a high level. In the United Kingdom it is at an extreme level. We are at a low level but it could still happen. Sensible powers given to security intelligence organisations that use those powers within the law and do not abuse the powers are a sensible precaution.I am aware that the Security Intelligence Service does not always use its powers sensibly. I am a product of a misguided effort by the Director of Security to engage in a smear campaign through the Prime Minister’s office to tell lies about me. But this is not about utu; this is about New Zealand and doing the right thing. We are doing the right thing in supporting this bill but I want to say that the safeguards that we put in are critical. The narrowing of the scope which would have given these intrusive powers to the SIS right across the scope of its activities has been brought back narrowing to the point that might possibly justify the legislation.I want to say one final thing to the Minister because it is an important point. I am in favour of stopping people leaving New Zealand who wish to contribute to an organisation that commits crimes against humanity and war crimes. I am not in favour of stopping New Zealanders who go to fight for a cause that they believe in. It might be the Kurdish people in my electorate who want to support their family in Kobani against ISIS or it might be the Syrian families in your electorate or my electorate who want to fight for democracy against the oppressive regime of al-Assad.We were assured at the select committee that these people would not be affected by this legislation so I was a little concerned when I heard the Minister on Q+A suggesting otherwise. I would like in the Committee stage an assurance from the Minister that people who go to fight for what is right will not have the freedoms that they are guaranteed under our New Zealand Bill of Rights taken away from them. Yes—an end to those who are going to fight for terrorist organisations committing crimes against humanity but not an end to people who want to fight for what they believe in to protect their families and do the right thing.Dr JIAN YANG (National):I take a very short call on this Countering Terrorist Fighters Legislation Bill. I would like to thank the Foreign Affairs Defence and Trade Committee chair Mark Mitchell and the other committee members including Opposition members like David Shearer the Hon Phil Goff and Dr Kennedy Graham for their contribution to this bill. They made a number of constructive suggestions that have been adopted.New Zealand is known for its peace and harmony. At the same time we realise we are not isolated from the rest of the world and therefore we need to react to what is happening in other parts of the world. We are a loyal supporter of the UN Security Council and of course we have responsibilities in responding to or implementing UN resolutions. This bill ensures that New Zealand fulfils its obligations in relation to UN Security Council Resolution 2178 so I commend the bill to the House. Thank you.The question was put that the amendments recommended by the Foreign Affairs Defence and Trade Committee by majority be agreed to.A party votewas called for on the questionThat the question be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Question agreed to.A party votewas called for on the questionThat the Countering Terrorist Fighters Legislation Bill be now read a second time.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Bill read a second time.Instruction to CommitteeRt Hon WINSTON PETERS (Leader—NZ First):I move That it be an instruction to the Committee of the whole House on the Countering Terrorist Fighters Legislation Bill that it have the authority to consider and if it thinks fit adopt the amendments in my name set out on Supplementary Order Paper 43. In the second reading I referred to the fact that in 2007 a great number of the members of this House thought it was wise to get rid of the sedition laws in the Crimes Act. Back then one party said that this was a very foolish move and that it was naive in the extreme and we—and we alone—opposed it. For the interest of some of the members of this House who today want to appear as paragons of virtue in respect of the defence of their nation it begs the question: what were you doing back then?I want to make it very clear that this country has become terribly naive when it comes to securing and protecting its citizens and that is what the Crimes (Repeal of Seditious Offences) Amendment Act did in 2007. All sorts of weak-kneed decisions have led to this country having very bad border control. Incidentally we never said we were opposed to Muslims coming this country; we said we were opposed to people not being carefully screened as to whether they appreciated the need when they came here to have some respect for our laws our traditions our values and those things that make New Zealand what it is. That is what I said. I am not having New Zealand First misquoted by johnny-come-latelys who whenever they are politically embarrassed do not want to own up to their naivety and stupidity but rather would try to say—The ASSISTANT SPEAKER (Hon Trevor Mallard): Order! I would just like to remind the right honourable member—because this is a process that is relatively rarely followed—of Standing Order 176 and also in particular Speaker’s ruling 81(1) which make it clear that this is a very narrow debate that cannot go to the substance of the amendment just whether the Committee should debate it. It certainly cannot go to the history leading up to it.Rt Hon WINSTON PETERS: Thank you very much for giving me that warning after I have had a chance to repeat it. This is a debating chamber of course and we are talking about provisions to do with this country’s security whether it be the major bill that we are looking at decisions we have taken in the past or an alternative. We in New Zealand First are saying that there is in our law and throughout the law of the Commonwealth—probably one of the finest systems of law in the world the British system of law—a rising problem. We had this safeguard that could be used. We did away with it naively. We are saying that with one simple amendment we could reintroduce it and have some real security in the future rather than panic measures to please commitments we have made offshore without telling the New Zealand people.Hon CHRISTOPHER FINLAYSON (Minister in charge of the NZ Security Intelligence Service): There are two reasons why this is a dopey motion. First it is out of scope—there is a very limited set of amendments that we are seeking to debate here. Second as I said some weeks ago at the first reading—The ASSISTANT SPEAKER (Hon Trevor Mallard): Could I just sit the member down? I know he is not deliberately criticising the Chair but if it was totally out of scope then of course I would have ruled it out.Hon CHRISTOPHER FINLAYSON: Thank you for your wisdom Mr Assistant Speaker. The second point is that next year there is going to be a substantive review of Part 5 of the Crimes Act where sedition was before it was rightfully repealed in 2007 and there will be ample opportunity to look at those substantive propositions in a careful and considered way. That is why what he suggests is—not surprisingly—dopey.A party votewas called for on the questionThat the motion be agreed to.Ayes11New Zealand First 11.Noes96New Zealand National 60; New Zealand Labour 32; ; Māori Party 2; ACT New Zealand 1; United Future 1.Abstentions14Green Party 14.Motion not agreed to.In CommitteeThe CHAIRPERSON (Lindsay Tisch): In accordance with a determination of the Business Committee the provisions of this bill will be debated as one question with the questions put separately at the conclusion of the debate.Parts 1 and 2 schedule and clauses 1 and 2Hon CHRISTOPHER FINLAYSON (Minister in charge of the NZ Security Intelligence Service): It may be helpful if I just make some preliminary comments on a couple of key aspects of the bill. What the bill does is make targeted amendments to enhance powers to monitor and investigate and to restrict and disrupt the travel of foreign terrorist fighters and other violent extremists.The first set of amendments deals with amendments to the Passports Act. The amendments are subject to a sunset clause so that clause expires on 1 April 2017. That was amended by the Foreign Affairs Defence and Trade Committee from 1 April 2018. The purposes of the changes to the Passports Act are to improve its operation and take into account the United Nations Security Council Resolution 2178 which asks States to restrict the movements of foreign terrorist fighters including their onward travel if outside their home country.Let us take a look at what is proposed. First one goes under the current Passports Act to section 8A. Travel documents can be cancelled if a person is a danger to the security of this country because they intend to engage in or facilitate a terrorist act. At the same time when one is looking at that one needs to bear in mind section 5 of the Terrorism Suppression Act 2002 which defines what a “terrorist act” is. So it allows the cancellation of a passport of a suspected foreign terrorist fighter and as I said section 5 of the Terrorism Suppression Act sets out what a terrorist act is.What we seek to achieve under the amended proposal is to clarify and make it explicit that a passport or travel document can be cancelled on the grounds that a person is a danger to a country other than New Zealand because they intend to engage in or facilitate a terrorist act. I say this immediately—I thought I had said it in my second reading speech—and I emphasise to Mr Goff who asked some questions of me that those of his constituents who want to go and defend or provide help to their families in the circumstances he outlined would not engage the cancellation proposals here provided of course that they are not engaging in terrorist acts. From the way he described it they certainly would not come under that category. What we are not seeking to do is what the Australian legislation does—that is declare an entire region of the Earth off limits to our citizens. But it comes back time and time again to that definition of a “terrorist act”. I hope that clarifies it for the honourable member.The second thing relates to the duration of a cancellation or refusal to issue. Under the current legislation—I refer to section 8A(2) of the Passports Act—passports can be cancelled or refused for a period of 12 months. In this bill there is a default cancellation or refusal period of 12 months but it authorises the Minister of Internal Affairs to specify a period of up to 36 months if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country. I will not go through the safeguards on the exercise of this power including rights of appeal to the High Court judicial review and so on.I do not intend unless honourable members have questions for me to go through the particular changes to the Customs and Excise Act and the Immigration Act. What I do want to do is say something about the proposed amendments to the New Zealand Security Intelligence Service Act 1969 set out in Subpart 2 of Part 2. The first deals with visual surveillance. Under the 1969 legislation the SIS cannot obtain a warrant to conduct visual surveillance. The police have this power and that was provided in the Search and Surveillance Act 2012.The proposals will mean that the SIS will be able to obtain a warrant to conduct visual surveillance subject to the same conditions and safeguards as intelligence warrants. The warrants will be available only for the detection investigation or prevention of any actual potential or suspected terrorist act or facilitation of a terrorist act. I emphasise those phrases because the limitation was inserted by the select committee and frankly I think it is a very good limitation. The strengthened office of the Inspector-General of Intelligence and Security will provide external oversight of the warrants and the bill requires the Director of Security to provide a copy of the warrant to the inspector-general as soon as practicable after it is issued.The second set of amendments deals with surveillance in situations of emergency. Under the current legislation the SIS cannot act without a warrant in situations of emergency or urgency though the police have the power to conduct surveillance for up to 48 hours without a warrant in such cases. Under these proposals the director will be able to authorise surveillance activities to be undertaken in situations of emergency for a period of up to 24 hours. As is clear that was reduced from 48 hours by the select committee and we are perfectly happy with that. After that a warrant must be obtained to continue surveillance.I thought the select committee inserted a number of very sensible safeguards including that the director must be satisfied that the threshold for issuing a warrant is met. Authorisations can be granted only for specific purposes. Supplementary Order Paper 39 makes it clear that only the director can issue the authorisation. The director must notify the Minister the inspector-general and the Commissioner of Security Warrants immediately. The Minister and commissioner can order the New Zealand SIS to discontinue any activity under the authorisation. Importantly no further application may be made for an authorisation in respect of the same subject matter. If no warrant application is made to the director then the director must provide a report to the Minister and the commissioner setting out reasons why it was not done.These I think are very sensible constraints that have been added by the select committee. The Government as was very clear was very happy to support them. When the general review of the legislation is conducted next year there is going to be ample time to take a good look at them and see whether they are working or whether further amendments are required. They are the only points I wanted to raise with the Committee at this stage. I have jumped over customs and excise and immigration but I thought they were the clauses that warranted detailed consideration.Hon PHIL GOFF (Labour—Mt Roskill):I want to thank the Minister in charge of the NZ Security Intelligence Service Chris Finlayson for his assurance in the Committee about the two instances that I mentioned—people who might be going to protect their families against the Islamic State of Iraq and Syria (ISIS) who might be under siege in Kobani on the Turkish border; and people who are going to fight for the Free Syrian Army for a democratic and free Syria that respects human rights.I have got the Minister’s quote from Q+A. If I could perhaps get the Minister’s attention and get him to listen to this it seems to contradict the assurance that he has just given us in the Committee. This is the quote from Q+A presuming the New Zealand Herald is quoting him accurately.This is from Mr Finlayson: “We do not want any New Zealanders getting caught up in this mess in the Middle East … whether they go off and want to fight for the Kurds or want to fight for ISIL.” The point that I just made to the Minister was that if I were a Kurdish refugee living in New Zealand and I was watching the slaughter of my people in Syria I might just be inclined—if I was of that age—to want to go and support my family there.The fundamental thing that the Minister has the right to object to I think is somebody going to fight for a designated terrorist organisation that is doing acts against humanity and committing war crimes. I understand that. The United Nations Security Council Resolution 2178 says that we should take every step that we can to prevent that happening. I am really worried however if we go beyond that resolution.Resolution 2178 was supposedly the resolution that was one of the reasons for the urgency of this legislation. But I believe that a New Zealander has the fundamental right to travel in other than that very narrow band of circumstances where they are going to aid and abet the commission of war crimes. Yes of course we should stop that. We are obliged to do so internationally we are obliged to do so under our responsibility to protect and we are obliged to do so in all humanity. But the Minister’s comments and the comments that he made in the House during the second reading—and again I wrote down what he said—were this: “The main point is we do not want New Zealanders getting involved.” It might not be sensible for a New Zealander to go and fight in Kobani—they are putting their life at risk—but they might believe fundamentally that that is the right thing to do to protect their people their families and their homes and I do not think that this House has any place stopping somebody from going to engage in a conflict for those reasons.Some years ago I passed legislation in this House that stopped mercenary fighters—that is where you go overseas to kill somebody for money—and I believe that it is equally justifiable under the Passports Act to withhold the ability of a person to travel to do that or to commit crimes against humanity. My father’s generation contained people who proudly went to fight against Fascism in the Spanish Civil War. We are proud of the people who did that and I would not want to see this legislation in the 21st century preventing what a former generation did which was to fight for democracy and for human rights against oppression—as against the legislation here which quite properly would prevent people from fighting for a terrorist organisation committing crimes against humanity.The legislation obviously takes its definition from the Terrorism Suppression Act 2002. I regret that there was an amendment to that around 2007 I think which means that all sorts of things could be defined as terrorism. You could define going to fight against apartheid and for Nelson Mandela as terrorism. Is that really what we would want to have in our legislation—that we could interpret it as being to prevent that sort of thing happening? So I do seek a clearer definition from the Minister as to when these amendments to the Passports Act might be invoked and when they would not be invoked because clearly officials gave me the assurance that they would not be invoked in the two cases that I mentioned to the Minister not so long ago.I want to just make a couple of other quick points about the passports legislation. I understand that there may be a reason to need to temporarily suspend a passport for 10 days as is done in clause 7(1) such as where you think a person may be going to fight for a designated terrorist organisation and you want to stop that person. I have no particular problem with that clause.I welcome clarification from the Minister on another point and that is a point that many submitters came to the Foreign Affairs Defence and Trade Committee about. They said: “You are clarifying the right to take away a passport from a person who is already overseas. This will render people stateless and this will prevent them from coming home. And the best way to help a terrorist organisation is to not allow a person who might have been led into contributing to ISIS to come home and escape from that.” I think the explanation given was a good explanation: this does not render people stateless it does not affect their citizenship and the Minister must—the word in the legislation is “must”—provide a journey-specific emergency travel document for them to get home. I have no problem with those two aspects of the changes to the Passports Act.The problem that my colleagues in the Opposition parties and I had was the concept that we needed to withdraw a passport for 3 years. This was something that the New Zealand Law Society in its submission led by Sir Geoffrey Palmer also had a problem with. The point is this: under the current Passports Act you can already deny a person a passport for a year and then you can renew the denial further. When I asked officials the question as to whether anybody who has been denied a passport—and it is a very small number of people—is now pressing for judicial review or taking court action that might lead them to be able to regain their passport and go over overseas the answer was no. Three years is a long period of time. I would have thought that legislation introduced under urgency and rushed through the House to deal with a specific problem would be limited to dealing with that problem.The one point the Labour Party put to the Government that was not accepted was the issue of whether you actually needed to change that 3-year designated period. Under proper consideration and in the normal course of a bill going through scrutiny and analysis you might be able to prove to me that that is a good thing. But what the Minister could not prove to me—and nor could you Mr Chair—is that you needed to do this immediately in this piece of legislation under urgency. I asked the question repeatedly as did my colleagues why it is needed to extend that period of denial of passport to 3 years in one go after the first year of denying the passport. Why can that not wait until a substantive review takes place legislation comes into the House in the normal way and it is considered before a select committee? Why do we have to do this now? There is no evidence that this is needed now immediately and before that review takes place.I would be grateful if the Minister could take another call and just answer those two points. Firstly why 3 years when there is no apparent need to do it urgently? And secondly could he just clarify what he is quoted as saying on Q+A on Television One and what he has said to the House? I am still left in some doubt as to whether my constituents in the circumstances I have explained would actually be able to leave countries overseas given the transcript of what he said on Q+A.DENIS O’ROURKE (NZ First):At its first reading New Zealand First supported this bill to the select committee but I said then that we would not necessarily support it any further. Since then two things have become clear.Firstly in terms of context we know now that the Government despite its unconvincing denials has been planning military engagement in Iraq with a sizable number of troops. This is not what most people want and it is not what New Zealand First wants. We want to stay out of it. If the Islamic State of Iraq and Syria did not know of New Zealand before now then it certainly does at this stage. We are now definitely an active and direct enemy. That means an increased risk for New Zealand not a lesser risk.Secondly we have learnt that the great majority of people who submitted do not want this bill because it means giving up some important rights without sufficient cause and without any genuine case for urgency having been made out. Mr Fletcher Tabuteau is going to speak more about what the people who submitted to the select committee said. But I want to simply say this: New Zealand First does not support the deployment of New Zealand troops to Iraq on any basis—The CHAIRPERSON (Hon Trevor Mallard): Order! Can I remind the member we are now in the Committee stage. We have accepted the principle of the bill and we are now discussing the specific clauses in the Committee as to whether or not the Committee accepts specific clauses. Therefore it is important to address those clauses.DENIS O’ROURKE: I certainly will be doing that. I was saying that there is no urgent or sufficient threat to New Zealand to justify any of the clauses of this bill. The assessed threat is “low” and it is not expected so it is very sad to see Labour supporting the contents of this bill. It is not just the contents but also the disgraceful fast tracking of it that has upset so many people and treated the public with a lot of disdain I think along the way. We are entitled to ask even at this stage why the rush now given that foreign fighters have been going to Syria and Iraq for months if not years. Why was the public not told that the deployment of troops was planned during the election campaign? Why was the attack on human rights—The CHAIRPERSON (Hon Trevor Mallard): Order! [Interruption] Order! I have warned the member.Dr KENNEDY GRAHAM (Green):I rise to address the two Supplementary Order Papers that the Green Party has put forward in my name—Supplementary Order Paper 41 and Supplementary Order Paper 42. I wish to try to explain those and explore them with the Committee and respectfully invite the Minister in charge of the NZ Security Intelligence Service to address them and explain his Government’s reasons perhaps necessarily for opposing them. They are put forward with constructive intent. As I think Mr Chairman you mentioned we are now in the Committee stage where we have accepted the underlying purpose of the bill even though the Green Party opposed it and so we are constructively seeking to improve the bill. Supplementary Order Paper 41 essentially brings forward the sunset date from 31 March 2017 to 30 June 2015 in respect of all three pieces of legislation. The purpose of that is to ensure that this bill would expire in advance of the review of the legislation. I have no further explanation for that other than to put it to the Committee for its consideration. We think the argument is sufficient to do that for reasons that no doubt are self-evident. If they are not accepted that will be the will of the Committee.I want to devote more of my time to Supplementary Order Paper 42 which has essentially a purpose clause. We do believe that the omission initially from the omnibus bill of a statement of general purpose was a major shortcoming. Now that it is to be divided into three bills we would simply recommend that the statement of general purpose be identical in each of those three amendments to those bills. The purpose of that is with a view to trying to get some clarity in it. I listened through the select committee hearings and also to the Minister this afternoon explaining a view that the three bills in their current form are “tolerably clear” which is a good play on words reflecting some of the select committee’s deliberations. Our response is that “tolerably clear” is not sufficient for legislation certainly in criminal legislation and also with equal force in legislation that essentially curtails civil liberties in the name of an expansion of State powers. It is not sufficient to have it tolerably clear. In our humble view it actually is not tolerably clear but even if it were that is not a sufficient threshold.Why do we say that? Here I am still sitting at the feet of the Minister and his governmental colleagues trying to understand the logical thread by which we get to where we are. What has happened in the last 12 months that has logically prompted us all the way through to a stage where we are planting covert surveillance cameras in bedrooms and bathrooms in the name of some new qualitative development? That is the question. If it is sufficient then the Government should have the capacity the will and the integrity to the people to make that blindingly clear—rigorously necessarily clear—to everybody’s satisfaction. We are not convinced that that has occurred yet so we have put a statement of purpose in.If I try to follow that logic that I was talking about I begin with the Prime Minister’s speech of 5 November and I take out two points. One is a game-changer to the security of New Zealand: “Much of that”—“much”; I grant you “much”—“is due to the rapid rise of the Islamic State of Iraq and Levant or ISIL.” Further he said: “Should they return to New Zealand fully radicalised and skilled in fighting they would represent a significant threat …”. I recognise there are two components there: full radicalisation and fighting skill.Suppose I said I have been to the Middle East. I lived there 3 years. I have been there within the last couple of years. I have been there. I have returned. I tell you now I am not skilled in fighting. I could declare to the Committee that I am a pacifist. I am not; but let me declare hypothetically I am a pacifist. I then say I am tempted to conclude having listened to people around New Zealand that humanity should live under a universal caliphate with strong sharia law. Am I then fully radicalised? Am I a fully radicalised pacifist? I recognise that I would not meet the definition of terrorism—presumably—but I want to know whether I am radicalised. If we are going to pass an intrusive State power bill and it rests on the concept of full radicalisation the Government owes it to the people to also make clear what in the New Zealand Government’s humble view is full radicalisation. This is the basis of the Prime Minister’s speech.We then think right on the basis of that we look to the bill. The bill itself was introduced initially by the Minister on 25 November. Presumably it was introduced in his capacity as Minister in charge of the NZ Security Intelligence Service. In its enthusiasm Hansard has written him up as Minister for Treaty of Waitangi Negotiations and there may need to be a correction if that has not occurred yet because that is a somewhat unfortunate Freudian slip. We look to the bill and we find no definition of “radicalisation” no definition of “foreign terrorist fighter” and no definition of the other phrase “other violent extremists”.We look to the explanatory note for help and the explanatory note says two things: the provisions of the bill reflect in part New Zealand’s international obligation to comply with United Nations Security Council Resolution 2178 which includes concern about people travelling to become foreign terrorist fighters and it urges States to restrict their movements. It says the provisions of the bill reflect “in part” Resolution 2178. So if it is only in part one would think that with a bill of this magnitude and import the Government would say what the other parts of the reasons were. But it does not—it is totally silent.We then look to the other part of the explanatory note which explains: “The bill is a response to the rapidly evolving threat of terrorism both locally and internationally.” And here is the critical statement: “It introduces short-term measures allowing the monitoring and investigation of foreign terrorist fighters and other violent extremists and the restriction and disruption of their travel.” That is the statement of purpose—the nearest thing we have in the bill. It is not defined. That is the statement of purpose. The two concepts are not defined.So the Green Party feels the need to have a statement of purpose with a definition in each of the three bills that would read as follows. The purpose of each bill is threefold: one it meets the obligations of Resolution 2178 “to combat threats to international peace and security caused by terrorist acts including those perpetrated by foreign terrorist fighters;”. That is word for word from Resolution 2178. The second one “ensures that such action by New Zealand remains consistent with its obligations under international human rights law” and refugee and humanitarian law. That is there in Resolution 2178. It is acknowledged in passing in the explanatory note. It is not in the context of the bill. It is not in the text of the bill. The third one “ensures that such action by New Zealand is not associated with any religion nationality or civilisation.”—the same thing taken from Resolution 2178.That gives a degree of balance in the bill. You are meeting the obligations under Resolution 2178 you are remaining consistent hopefully with all our human rights obligations and you are ensuring that the action does not cut across any actions associated with religion nationality or civilisation—and that is a trifold balance in the bill that is currently lacking. Then there is new subsection (3) defining the “foreign terrorist fighter” which is taken verbatim from Resolution 2178 as a person who travels to a State outside New Zealand for the purpose of perpetrating planning or preparation of a terrorist act or of providing or receiving terrorist training including in armed conflict. We seriously recommend that consideration be given to that.FLETCHER TABUTEAU (NZ First):There have been quite a few issues raised in the debate this afternoon. I speak first on the passport issue which seemed to slip through the conversation in the Foreign Affairs Defence and Trade Committee—kind of under the radar. It was not an issue of great debate yet the issue was raised—and it was raised again quite strongly by the honourable member—that we are asking in the Countering Terrorist Fighters Legislation Bill to extend our right to remove a passport from 1 year which it is currently to 3 years.I asked numerous times whether we were not already complying with our requirements to the UN Security Council Resolution 2178. I was told repeatedly that yes under current law we comply with the resolution. We are prohibiting the movement of terrorist fighters we are prohibiting them from leaving our country if we know that that is their intent and we are prohibiting them from moving across borders in different parts of the world. That legislation exists already.When the honourable Minister in charge of the NZ Security Intelligence Service said how sensible this legislation sounded I had to agree with him at the time because he is such a sensible-sounding member. But when you actually ask the question whether that compliance already exists in our New Zealand law then you have to ask where the sense is. How is it sensible that we now remove the right of New Zealand citizens to have access to their passport for a period of 3 years when in the select committee it was identified and discussed that already there are a very small number of individuals whose passports have been removed where that action has been taken? But it was also noted that at no point has it been necessary to extend that period of time. At no point has the SIS come forward and said: “We need more time. We need to extend it further.” Where is the sense in that?Dr Kennedy Graham was speaking just now about our compliance with UN Security Council Resolution 2178 and I acknowledge that yes we do comply. We already comply. But actually what was noted there also was that the legislation spoke of only that part. The legislation made reference to “a part” of the resolution. There are several other parts that ask this nation this Government to please take account of its citizens’ human rights and their rights to privacy. That is also in the resolution. It explicitly states that it explicitly expects Governments to take consideration of individual human rights and privacy. It even speaks further about the practice of undermining those rights leading to radicalisation and that is something that we absolutely must avoid.At the moment with the rhetoric that is being used in the presentation of this bill to the New Zealand public and the rhetoric that is being used to present this bill to the members of the House we are radicalising a minority group within this country and in fact we are already not complying with the UN Security Council Resolution 2178. We are countermanding the requirements there already.I just want to add my statement around the definitions of terrorism the definitions that have been referenced in the legislation. It has already been acknowledged and it has been said very eloquently—and I am adding my voice and the voice of New Zealand First to this conversation—that actually there is no sensible definition of “terrorist”. “Freedom terrorist fighter” is not even mentioned in the legislation apart from the title. The ludicrous statements and the use of reference to legislation where we have had members of this House investigated by the security agencies under those current definitions seems to be counterintuitive and not just that but undermining the democracy and the human rights of New Zealand citizens.We are not clear about what defines a terrorist. We are not clear on what “contributing to” might look like. We are not clear on what—DAVID SHEARER (Labour—Mt Albert):I just want to invite the Minister in charge of the NZ Security Intelligence Service as Kennedy Graham has just done to reply to questions about Supplementary Order Paper 42 which Kennedy Graham has put forward. We have obviously seen it only recently and in some ways it is a function of the way this has been sped through. We have not had a chance to perhaps look at these things because they have been contemplated really only over the last few days but on the face of it I do not see it as being unreasonable. We do mention the Security Council Resolution 2178 in the commentary on the Countering Terrorist Fighters Legislation Bill. It is not mentioned specifically in the bill itself and it would seem to me that given that this is a narrow piece of legislation it is there for a particular purpose—in part to comply with Resolution 2178—and it would not be unreasonable to look at that seriously. The definition of “foreign terrorist fighter” that Mr Graham has put up comes out of Resolution 2178. It does not cross over some of the discussion we had at the Foreign Affairs Defence and Trade Committee which was around trying to redefine terrorism and terror as an act which was a much bigger event that we will probably have to look at as a result of the bigger review we go into. Instead this looks at and refers to just what this bill is ultimately about. I think that the Supplementary Order Paper is a thoughtful one and a good one and I invite the Minister to perhaps take a call and give his thoughts on it.In this legislation we are looking at a number of issues. There is the issue relating to the Passports Act which people have spoken on. There are the amendments to the New Zealand Security Intelligence Service Act and the Customs and Excise Act. They are the three Acts that are being modified as a result of this bill. There are a number of contentious pieces of change that we have spent some time on: visual surveillance warrantless surveillance the passports issue the interim nature of the bill and access to the customs and excise databases.I want to speak on the first of those I just mentioned which is visual surveillance. It was put to us in the select committee that there was an imbalance or an inconsistency between the SIS and the police. The police have the ability to conduct visual surveillance; the SIS do not. That was in part it was explained to us because the New Zealand Security Intelligence Act was very old. When the SIS first came into being a camera in somebody’s room would mean a 2-foot by 2-foot object in the corner and obviously it would be noticed. That is not the case obviously any more. Cameras are invisible to people in their offices their cars their houses or whatever so people cannot observe them. We had a long discussion about this and the difference between the threshold that relates to the police and the threshold that relates to the SIS.This is a point that was made by both the Legislation Advisory Committee and the Law Society: the police are given that authority by a consenting judge where the offence carries—and there was a bit of disagreement between the Legislation Advisory Committee and the Law Society over this—a term of imprisonment of between 7 years and 14 years. But it had to relate to a crime that it was seriously thought was going to be undertaken or was in the process of being undertaken and the seriousness of which brought a 7-year or 14-year imprisonment period. With the SIS it is somewhat different. The threshold is very different. It is about whether we suspect or have an issue around knowing that something unsavoury if you like might actually happen. We came to the position we did—which was to make sure that if this provision was going to be brought in it was made very narrow and contingent on whether it related to terrorism or the conducting of a terrorist act—really to safeguard I think the definition that we were looking at and the broader definition of security which the SIS works under.The broader definition for the SIS meant that it would look at for example: “the identification of foreign capabilities intentions or activities within or relating to New Zealand that impact on New Zealand’s international well-being or economic well-being:” as stated in paragraph (b) of the definition of “security” found in the interpretation clause of the New Zealand Security Intelligence Service Act. We felt that that threshold was a low threshold to enable this broadening of powers within the scope of this piece of legislation. So what we were looking at in terms of this bill was to ensure that we took a narrow view of what the threat was and related any measures that needed to counter that threat by the SIS to only that threat which meant that it related only to the threat or the carrying out of a terrorist act. We were very concerned that without the ability to have a look at this bill in a wider context we would enable visual surveillance to take place under the guise of a threat of terrorism but that it would relate to the much wider functions of the SIS and we did not believe that that was where we wanted to go.Obviously any visual surveillance needs a warrant. There is a part in the legislation about warrantless surveillance and I will come to that later on in the debate. But I do believe that that means that a warrant has to go to the Commissioner of Security Warrants. It also has to go to the Minister and in addition to that the Inspector-General of Intelligence and Security needs to be informed. So we have an ability to have those safeguards in this interim piece of legislation which I think will enable the public to have much more confidence that we have got the balance right. In addition once the information that is obtained under a warrant for visual surveillance has been used it must be destroyed. Once again we have a safeguard that this will not be kept in perpetuity. The director of the SIS must be sure and have sufficient evidence to ensure that a warrant for visual surveillance is well and truly justified.Visual surveillance as many of the submitters said to us is a far more intrusive form of surveillance than perhaps tapping somebody’s phone or looking at somebody’s computer. It means that there is a camera inside your house your bedroom your office your car or wherever. It therefore is beholden on us to make sure that the scope for allowing that to happen is made as narrow as possible and is very much related to the bill itself. I think we have ended up in a place where it does not allow a backdoor for visual surveillance to be used across a broad spectrum of the SIS’s abilities and responsibilities but is restrained and constrained to that alone. I do believe that we have struck a reasonable balance on that. I am sure that when the broader review comes into being there will be a very strong submission made by the SIS that its powers need to be enhanced with regard to visual surveillance. I do not believe that it is simply a question of saying: “The police have got it therefore we should have it”. I do not believe that that was a good enough argument which was made by the Law Society as well. The police and the SIS are operating in different circumstances and on the basis of that we should be looking at the thresholds quite differently as well.MARK MITCHELL (National—Rodney):I just want to respond to a couple of the issues that have been raised. The first one that I want to talk to is the issue that Mr Goff raised because we did have quite a lengthy discussion about this in the select committee.Firstly I just want to say that in relation to a Kiwi wanting to leave New Zealand in order to go and engage in a conflict somewhere else in the world the actual legislation is very specific when it refers to a terrorist act. Of course we have got the Terrorism Suppression Act 2002 section 5—and I will come back to some of these points. We have got a very specific guideline that outlines for us very clearly what actions need to be met for an act to be deemed a terrorist act. Mr Goff raised a very good point. I think there is a wider issue that we should think about and reflect upon as a nation and that is do we want to be encouraging or allowing Kiwis to leave New Zealand to go and engage in any type of conflict regardless of which side they may choose to participate on? I think he used Peshmerga in Kurdistan as an example.One thing that I can safely say having spent some time in the region myself—in fact a decade—is that it is a very complicated situation that we are having to face. If there are 10 layers of complexity to it then after a decade of having been up there I can safely say that I probably understand one of those layers. So a situation that you think on the face of it may present a certain set of circumstances is liable to change and can change either quickly or more slowly over time.I think a far better and safer position for us to take as a country is to discourage and try to stop any Kiwis leaving New Zealand to go and take up arms and participate in a foreign conflict. But if they do then we have got very clear guidelines available to us under the Terrorism Suppression Act which clearly show us what ingredients need to be met or what threshold needs to be met for us to understand clearly what a terrorist act is. I will mention maybe just a couple of them.Under section 5(1)(c) of the Terrorism Suppression Act: “the act is a terrorist act in armed conflict (as defined by section 4(1)).” It is intended under subsection (2)(a) and (b): “to induce terror in a civilian population; or (b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.” Subsection (3) states: “the death of or other serious bodily injury to one or more persons (other than the person carrying out the act): (b) a serious risk to the health or safety of a population: [or] (c) the destruction of or serious damage to property of great value or importance or major economic loss”—and that is actually a very important one. There is a fair bit of debate around that as well because I am pretty sure that here in New Zealand if we were to suffer a major terrorist act at say the Port of Auckland or the Port of Tauranga then it is going to have a pretty significant negative impact on our economy and well-being not to mention the general huge negative impact it would have on our psyche as a country. Subsection (3)(d) states: “serious interference with or serious disruption to an infrastructure facility if likely to endanger human life:”.That is about half of the criteria. So it is actually very very clear if you refer to the Terrorism Suppression Act 2002 in terms of the threshold that has to be met to define someone as a terrorist. This bill is about stopping people leaving New Zealand to engage in acts of terrorism as a terrorist.The other point that I want to make very quickly is that we talked about the visual surveillance powers—the warrantless powers—that have been given to the SIS. Maybe to give a practical example of what could possibly occur would be a terrorist fighter who has been active and for whatever reason has been able to buy themselves a ticket on a flight out of the Middle East and arrives in New Zealand. We have to be able to watch that person for the first 12 to 24 hours when they arrive in the country. [Bell rung] If we did not have that ability—The CHAIRPERSON (Lindsay Tisch): Order!MARK MITCHELL: Sorry sorry. Mr Chair.The CHAIRPERSON (Lindsay Tisch): You must go for the call.MARK MITCHELL: Thank you Mr Chair. If we did not have that ability then effectively we could have someone who was in New Zealand—we did not know the full intent of their visit or their reason for coming to the country and we had no ability actually to monitor them properly or try to gather the intelligence that we required to make that determination.I think this brings me back to the difference between the Search and Surveillance Act that the police have available to them and the visual surveillance powers that the SIS has. The SIS and the police have got very different roles. The police have to get a warrant through a High Court judge with the view to gathering evidence with the view to taking a prosecution into our court system whereas the SIS role is to gather information and gather intelligence to try to work out what the intent of that person is. At no time through that process are they intending to or can they prosecute that person in our court.If during the course of that process it becomes apparent that the person is committing a crime then of course there are abilities under the legislation to be able to engage the services of the police and they would probably take over and then use their powers under the Search and Surveillance Act or the Crimes Act or whatever they needed to do. I just wanted to be clear about the fact there are two very different roles here for our police service and for our SIS service.Finally I just want to reiterate that I have listened very carefully to New Zealand First and their leader the Rt Hon Winston Peters. To be honest with you I was surprised. I thought that New Zealand First would have supported this bill. I do not know whether raising an old piece of legislation around sedition which was removed back in 2007 is a good reason to ignore the situation that we have to deal with presently but that was the reason put up. I am surprised because now we are faced with New Zealand First and the Green Party not supporting this bill. Thank you very much.CATHERINE DELAHUNTY (Green):I would just like to take a brief call on the parts of the bill that have been a particular concern to many submitters. I do want to refer to some of the submissions that I did not get to hear personally but did get to read at the Foreign Affairs Defence and Trade Committee.There seems to be considerable doubt and debate around some of the issues for example the definition of terrorism and it is interesting just to note that there have been no convictions under the Terrorism Suppression Act so far. Section 5 of the Terrorism Suppression Act which has been referred to a lot in relation to this bill is defined in such a way that the Prime Minister may add organisations to the list of designated terrorist entities and if he is satisfied that they have carried out a terrorist act they can go on a list. So that is quite a broad definition and if you look at for example what happened in the 1980s with the African National Congress when they were fighting against apartheid and they bombed South African military buildings—I would never advocate violence but are those people terrorists? So it is kind of interesting to see how broad these definitions can be and who will be captured. A lot of the submitters did not have confidence that the definitions and the way that these two Acts interrelate would actually target people who are genuine terrorists. They felt that there was real risk of it being broader.It is an interesting debate as to whether we should support anyone leaving this country to participate in foreign war. We certainly support soldiers doing it in some wars where many of us do not see why. So we are not consistent here about who is a good killer and who is a bad killer. I think it is really important to talk about that as a society rather than just identify some people who might go and fight for their country’s independence as being bad and other people who are fighting on behalf of the New Zealand Government as automatically being good. I think these things are superficial which is why we would much rather have a far deeper examination of this whole topic than this rushed legislation.Also the Human Rights Lawyers Association made important points about Part 2 when it talked about visual surveillance. It described it as particularly “ … highly intrusive and [impacting] heavily on the right to privacy afforded under domestic law and international convention.” So it believes that before such powers are enacted the SIS must show the need for them—i.e. the capability to perform existing duties is impaired by an inability to carry out such surveillance. I think that is quite an interesting phrase—the capability to perform existing duties is impaired by an inability. We have not seen the proof of that. I do not know whether it was described at the select committee but certainly these submitters feel that it was not addressed and that there is a whole issue around creating a law for something when actually the SIS already has the capability to do a great deal of things although “capability” is an interesting word. After many years of having been surveilled by the SIS and having read many reports about the SIS I am not sure what it has ever done that seems particularly effective in this country. Maybe there is a whole seething mass of 60 years or so of dissenter behaviour that desperately needed to be followed but a lot of it seems to have been fairly bizarre to put it bluntly.Not only the Human Rights Lawyers Association but also Amnesty International talked about the issues that are covered in Part 2 around surveillance and it had some real concerns about those. It also had concerns about Part 1 in terms of amendments to the Passports Act. Its statement which I wish to quote is that “Compliance with all human rights while countering terrorism represents a best practice because not only is this a legal obligation of States but it is also an indispensable part of a successful medium- and long-term strategy to combat terrorism.” So compliance with human rights with the New Zealand Bill of Rights Act and with all forms of international conventions should be absolutely fundamental and we do not think that this bill has addressed those issues. We think that it is incredibly serious.When Amnesty International talks about the special rapporteur on the promotion and protection of human rights Martin “Scheinin-einin”—I have probably pronounced that wrong.Hon Phil Goff: Martin Sheen? Isn’t he an actor?CATHERINE DELAHUNTY: Scheinin—the special rapporteur—talks about the promotion and protection of human rights and fundamental freedoms as being really vital to actually preventing terrorism because we model and we stand up for human rights and we acknowledge the human rights of people who could potentially become our enemies. That is why it is so important that this bill is not pushed through with such a hurry when these groups—these very very committed groups with civil liberty expertise—actually raise really serious issues about the tests and about the conventions.TRACEY MARTIN (Deputy Leader—NZ First):I want to take a quick call on behalf of New Zealand First to clarify our reasons for opposition and to be very clear so that the public is very clear about New Zealand First’s stand on this. I was not on the Foreign Affairs Defence and Trade Committee but Mr Fletcher Tabuteau has briefed the caucus incredibly well on this very very important bill.With regard to the clauses which are the substantive amount of the bill and what the bill actually does one of the things that New Zealand First has clearly identified—and it has been articulated by members of the Government—is that the majority of actions that this bill supposedly allows are already in legislation. They can already be used if not by the SIS then the SIS can go and see the police and the police can actually go and arrest people. Therefore there is no need for those clauses; they can already be used.That takes us down to two clauses—two clauses—that are not there. One is the passport clause which we have already heard about which is the extension from 1 year to 3 years. What we know—we have already heard it from the Labour Party from the Green Party and from New Zealand First—is that the ability to withdraw or cancel somebody’s passport for 1 year can be renewed at the cost to the State as opposed to the cost to the citizen to have to fight to get their passport back should it be cancelled for 3 years. So in our view there is a movement of cost here—prove yourself innocent rather than the State having to prove you guilty. But the State has the ability to cancel a passport for 1 year and to roll it over and it has never been extended—it has never been extended. That was the question asked and that was the question answered and the chair of the select committee knows that.So let us just remove the fact that we do not need the 3-year clause around passports because we have this other ability. What are we left with? We are left with video surveillance. We are left with the single thing that is not covered in any other piece of legislation which the bill says is required to protect our citizens. That is a major issue for New Zealand First particularly when part of that—let us have video surveillance—comes down to “trust us”. Trust us because the inspector-general has increased powers. And yet New Zealand First asked for an oversight committee made up of senior politicians to be able to double-check that within 48 hours. If you have a look at the supposed increased powers of the inspector-general she can go and report to the Minister and to the Prime Minister but if they refuse to accept her recommendations she can go no further.So it is hardly—hardly—about trusting the inspector-general; it comes back to trusting the Prime Minister and the Minister. That in itself is an issue—the widening video surveillance of your citizens. We now hear that there was a review of this to create this bill—Mark Mitchell: We’ve got the most transparent system in the world.TRACEY MARTIN: And let us keep it that way Mr Mitchell. Let us keep it transparent and let us be honest with the people of New Zealand shall we? Let us be honest with the people of New Zealand. There was actually a review done that nobody knew about but apparently the Government did. During the election period there was a review done that has now apparently informed this bill but nobody knew about it. This bill arrived after the election and the words “trust us” were used. The words “trust us” were used. We will not trust it.There is a review to go forward next year—and there is another review. The fact is that every single thing that this bill asks to be done can be done except video surveillance—and there is a review next year that should take the proper course and allow the New Zealand public to truly transparently and honestly look at what we are being asked to pass here about their rights. New Zealand First will not curtail that process. We will not support this bill until that full review and video surveillance are fully discussed.Hon PHIL GOFF (Labour—Mt Roskill):I would first like to just pick up on a couple of points that the chair of the Foreign Affairs Defence and Trade Committee Mark Mitchell made. He said that the guidelines for what constituted terrorist activity were clearly set out under section 5 of the Terrorism Suppression Act 2002. I have to confess to having had some involvement with that Act and I do not think we did set it out anywhere near as clearly as it needs to be. In respect of a “terrorist act” if I give just one example section 5(2) defines it as: “An act falls within this subsection if … [a group tries] … (b) “to unduly compel or to force a government or an international organisation to do or abstain from doing any act.”I guess if I was going to fight alongside my family in Aleppo to stop President Bashar al-Assad from bombing my family’s home and slaughtering the people I would come under the definition of terrorist unless—and maybe the Minister in charge of the NZ Security Intelligence Service can give me some comfort in this—it is defined as a situation that occurs in a situation of armed conflict. So I think we do need some clarity around that. I am personally not satisfied with the contemporary relevance of that definition. I do not think it is anywhere near tight enough which is why if we cannot do it in this bill I would like the Minister to look at it in terms of the review of the legislation next year.The second thing in relation to Mark Mitchell’s point is that he raised the question: “Do we want to encourage Kiwis to go and participate in a conflict?”. I suppose my answer would be the same as the member’s—no I would not actually want to encourage my kids or my nephews or anybody else to go and fight in that sort of armed conflict. But that is the wrong question. The question is: should we as the Government give ourselves the right to prevent them from going to do that? That is a much more difficult question. The answer that I give to that question is no unless it is a terrorist activity.I want to pick up the key reason why Labour is now actually supporting this legislation which is the changes that have been made under visual surveillance and the emergency warrantless surveillance that this bill allows. When this bill came into the House the scope for what the SIS could do with these two powers—visual surveillance which is incredibly intrusive—my colleague said it could be a camera in the lounge in the living room or it could be in the bathroom or the bedroom as well. It could pick up people who are independent of those whom you might want to surveil. I would not want a camera in my house and nor would you Mr Chair. So you need to be very careful about how you would give that power.Under the bill as introduced as the Law Society pointed out translating the threshold for visual surveillance that already exists under the Search and Surveillance Act for the police to the SIS would “impose too low a threshold for the authorisation of visual surveillance … the threshold for visual surveillance is substantially lower than that which applies to the Police under the [Search and Surveillance Act]”. So we were faced not with equalising a power for the police and the SIS but with giving a power to the SIS that had to meet a much lower threshold and that clearly was never going to be acceptable to us.The solution in fact in this bill was to take out the low threshold that was authorised “for the detection of activities prejudicial to security”—well that is very wide—and “for the purpose of gathering foreign intelligence information that is essential to security;” which is equally wide and to translate it to just looking at the scope of a “(i) terrorist act; or (ii) facilitation of a terrorist act;”. So we have brought that scope for visual surveillance right down to what this bill is apparently about given the explanatory note on the bill as introduced.Likewise we have required that the Director of Security “must provide a copy of the visual surveillance warrant to the Inspector-General.” That is new. So we are bringing the inspector-general in to have scrutiny and surveillance over the SIS’s visual surveillance. If I was to make another comment to the Minister in the chair Christopher Finlayson I would say that an important part of the review that is coming up would be to increase the independence and powers of the inspector-general. I think that for the first time we are seeing an inspector-general who actually can act independently. Yet when we received a briefing from the inspector-general she said that her role was to advise the Minister which it is but we would like to have it made absolutely clear that the inspector-general sits to one side and independently makes sure that the Minister and the commissioner and the Director of Security are all doing their job under the law and are not in breach of the law.The other thing that we did—and nobody has mentioned it in the debate so far—is to increase the penalty for knowingly failing to comply with section 4IB(10) in clause 9 of the bill from a $1000 fine to a $10000 fine. I think that is really important.I guess my even bigger worry was the concept of having warrantless surveillance. One of the things that you can take some comfort from is that at the moment before the SIS intrudes into your life with surveillance by means other than visual surveillance there needs to be a warrant and in a domestic case that warrant has to be agreed to by the Commissioner of Security Warrants who is a High Court judge. But again we have a situation where under the bill as introduced this power of warrantless surveillance was going to come in with a much much lower threshold. The Law Society said that when the police use warrantless emergency surveillance it is to follow up any type of serious offence punishable by a term of imprisonment of 14 years or more. So when the police exercise that power they have to meet a whole series of prerequisites and it has to be for the most serious forms of crime. As the Law Society pointed out if you gave it to the SIS “neither the commission of an offence nor a risk to life or safety feature in the proposed NZSIS emergency surveillance provisions. By contrast the only element relating to establishing urgency/emergency is that delay must be likely to result in a loss of intelligence.” That would have been ludicrous. You would have been giving incredibly intrusive powers that were not subject to the normal controls to the SIS for a very very low threshold. So once again we have narrowed that to simply looking at a terrorist act or facilitating a terrorist act. That is the critical change that has been made in this legislation.We have also cut down the hours of warrantless surveillance from 48 to 24 which is quite important and again at each point we have given direct power of oversight to the inspector-general. In the original bill there had to be an agreement to pass it to the inspector-general; now the inspector-general automatically has the power of oversight. I think those changes are really important. They are the difference between our not being able to support the bill and our supporting it.The other thing is that these powers are meant to be used incredibly rarely but how do we know that they will be? The director is now required to report not annually—because if you report annually it could be 18 months after the event—but every 6 months and to bring it down to the actual time bands the period of time that the authorisation was in place. I think those changes are important.I hope Minister that they are carried over into the review because although I am assured by you that you want a consensus-style approach to this I picked up a comment by the Prime Minister where he said: “Well we haven’t got these powers but we can broaden the powers after the review.” Well that smacked of incredible arrogance I have got to say and I am worried about that. I hope that we can do the sort of exercise that we all did on the select committee which was to look at the legislation properly and work out what is necessary for the protection of New Zealanders—for both their safety and their right to privacy and other rights.As a final point can I ask the Minister to consider Supplementary Order Paper 42 which my colleague Kennedy Graham has put before the Committee. On a first reading of it it seems to me to be reasonable. It talks about meeting our obligations under Resolution 2178 it talks about ensuring that we remain consistent with our obligations under international human rights law—I cannot see any problem with those two things—and it defines a “foreign terrorist fighter”. So I would be interested in the Minister’s response to what I believe is a very genuine effort on the part of Dr Kennedy Graham to bring the definition down to something with greater clarity and greater certainty. So can the Minister please reply to that point when he takes the call.RON MARK (NZ First):I am going to take only a short call at this point because I really want to carry on the discussion around the debate over the definition of a terrorist act or a terrorist or a freedom fighter. It has been a while actually since I stood in this Chamber and I have just been going back through the Hansard—not something you do lightly or voluntarily—of 2007 when I spoke on a number of bills such as the Terrorism Suppression Amendment Bill and through the Crimes (Repeal of Seditious Offences) Amendment Bill the repeal of the seditious offences legislation. It is clear that every time we get into discussing these matters there is always the question of how we define a terrorist and how we define a terrorist act. How can we assure ourselves that we are not catching people in legislation that we have no intention of catching? I think it is pretty fair to say that one man’s terrorist is another man’s freedom fighter.Keith Locke was famous—or infamous depending on which side of the political divide you sat—for a very romantic article that he wrote about Pol Pot coming in to the capital of Cambodia waving his pistol in the air firing a shot and drawing the crowd’s attention to himself as he liberated—as he liberated—those poor sorry people. Of course Pol Pot proved not quite to be the freedom fighter that Mr Locke in his days when he was writing for Salient thought he was and he tried desperately in this Chamber on many occasions to stop us from referring to that article. In fact I used to keep a copy of it in my drawer here so that I could always remind him: “You know sometimes you get it wrong Keith.” Pol Pot was not a nice person. I would also point out that there was a chap by the name of Mugabe. The only person who had it right whom I can recall was Robbie Muldoon. He said: “He was a terrorist he always has been a terrorist and he always will be a terrorist.” History unfortunately—Hon Phil Goff: He said the same thing about Nelson Mandela.RON MARK: Well let us be careful not to go there because like I say one person’s freedom fighter Phil Goff—you know—is another person’s terrorist. Having seen photographs of men whom I served alongside in the Middle East who were part of the SAS and the Rhodesian fire force and having seen photographs of bodies used for bayonet practice by terrorists it leads one who was in uniform to a quick conclusion that the people who carried out those acts—complete with their necklaces and the petrol contained inside the tyre burning people to death with their hands and knees tied—could quite easily be defined as terrorists Phil. They were from the African National Congress.Hon Phil Goff: Have those who slaughtered people—RON MARK: Phil you have had about five calls. I am just going to say that some of us still look upon those acts as pure acts of terror designed to terrorise people into accepting a new political order and I do not care how fancy or how lauded the name is today—those necklaces were acts of terror. Bayoneting the workers of a farmer in the bush of Rhodesia was an act of terror.I come back to the debate that we will always have and I am going to say to the Minister in the chair Chris Finlayson and to the chair of the Foreign Affairs Defence and Trade Committee: give us a sense because at some stage someone is going to be looking at Hansard when some poor unfortunate chap—he might be a guy who has served with the New Zealand SAS he might be on circuit having taken leave without pay or a discharge from the New Zealand army or he might have gone across to assist some family in Ukraine against the Russians or might have gone across to Oman. We actually had three mercenary battalions in Oman and Phil loves to get all passionate about mercenaries. We used mercenaries over there as paid employees of Sultan Qaboos to do the right thing for that nation and to act in defence against the wrong things being done to it. We had occasions on which some of those chaps from Balochistān would come to us and say that they had problems at home and that bandits and people were raiding their—The CHAIRPERSON (Lindsay Tisch): Can the member—it is interesting with your experience—RON MARK: I know it is.The CHAIRPERSON (Lindsay Tisch): I know but when we are in the Committee stage it is about what is drafted in the bill so I will ask the member to come back to that.RON MARK: What is drafted in the Countering Terrorist Fighters Legislation Bill is a continual referral to a definition of terrorism. What is confusing for some people and hence an amendment is on the Table today is that some people disagree. What I would like to see in the bill or even in Hansard today is some statement that says that these people are not included and that it is not the intention to capture under this legislation New Zealanders who are going to fight people who deserve to be and need to be fought whether it be in Ukraine or any other part of the world.FLETCHER TABUTEAU (NZ First):I just plead to your patience and take this time to acknowledge the chairman of the Foreign Affairs Defence and Trade Committee the members of that select committee their efforts and their work. I acknowledge that on the other side of the Chamber there were some hard questions asked. I acknowledge especially the work of those of my peers sitting on the left-hand side of the table who would constantly and diligently dig and try to understand what the Government was trying to achieve. We speak today of compromise but I would put it to the Committee that no compromise has been reached. There has been no compromise on warrantless surveillance. There has been no compromise on the use of video surveillance. There has been no compromise on access to passports. There has been no compromise on the access of the SIS to the database of our customs agents. There has been no compromise as to the oversight of the Inspector-General of Intelligence and Security. Her role remains the same.Specifically for example we talk about warrantless surveillance. We have already had quite detailed discussions about it and I acknowledge that the definition has been refined. Mr Mitchell spoke about the straightforward nature of reading the Terrorism Suppression Act but I put it to you that although it is straightforward to read from the page it is another thing to interpret the intent of those words and exactly what it is they are trying to achieve. When we come to the conversation around a compromise actually in my humble opinion from my time on the select committee and from the numerous submissions I have heard no compromise has been reached. We will still have this warrantless surveillance and we will still have video surveillance.On video surveillance the advisers spoke about how we are using chunks of legislation and we are pulling them together to make this omnibus legislation straightforward and robust in that there is an existing template and therefore we should be satisfied that it is robust. However—and this was spoken to by numerous members in the Committee already—the threshold for video surveillance for those other members of law enforcement agencies as opposed to surveillance and information-gathering agencies is so much more rigorous. I put it to the Minister that although we must never confuse the roles of our law enforcement agencies and the roles of our surveillance and information-gathering agencies we have had it put to us—it has been argued and it has been put to the public—that there is a sense of urgency that we know something is going to happen and that we must react to it. So I simply ask the question: under the Search and Surveillance Act the police already have these rights—Dr Kennedy Graham: I raise a point of order Mr Chairperson. I am sorry to interrupt my colleague and I do not wish to shatter the crystal that was prevailing in the select committee but correct me if I am wrong—my understanding is that officials are to relate only to the Minister in the chair and not to other members of Parliament.The CHAIRPERSON (Lindsay Tisch): I am sorry. I hear what you say and that is correct. All right—we will not do it again.FLETCHER TABUTEAU: What I was saying was that there is almost an argument that we are at a stage where there is a supposed clear and present danger. Those words were not used; those are my words. I concede that point. But if this is the case and we are in such a state and if this is so urgent then the police have the right to do what it is we now ask of our SIS agency. Given the nature of the process we have been through and given the lack of voice from the New Zealand public—actually I put this to you. During the select committee I mentioned how there were some robust questions asked even from those on the Government side. What actually seemed to be the most common answer—and it was an answer said with a level of frustration and disappointment—was that in fact we cannot answer your questions. The submitters told us quite openly when we asked them: “What would you do? How would you interpret that? What do you think would happen then?”. The submitters replied quite clearly and with a tone in their voice: “You have not given us enough time to consider the implications and the ramifications of what it is you are asking.”There is no compromise reached in this Committee today. Everything that was in this bill in its original form will come to pass albeit with different words but the outcome will be the same. I will just use the rest of my time to say—I have made a note—that it has been commented on by the media about the increase in the powers of the inspector-general. I just want to make it very clear to the New Zealand public and to the members in the Chamber today that the powers of the inspector-general have not changed due to this legislation. This was not within the purview of the select committee or of this piece of legislation. What was increased—and I acknowledge the efforts of the members across the way there—was not the powers of the inspector-general but rather the obligations of the Minister in charge of the NZ Security Intelligence Service and the Director of Security and their obligations to the inspector-general. I acknowledge that that created an element where reporting and the submission of information to an independent body were required.But this conversation about the role and the responsibilities of the inspector-general has come up in this House before. The inspector-general herself described her role and her job as a role that is for the benefit of the Minister. How can we then say that the inspector-general will hold the Minister to account when under the legislation for that exact position and by her own words she exists for the benefit of the Minister? She will come back and say “You have done wrong.” but she will say this to the Minister who has done wrong. She will report back to the very person who is liable and must be held to account albeit along with the warrants officer. This is what this legislation is saying. This is what the clause will tell her to do.Then we spoke about her reporting powers and their public nature and how we are publicly accountable. Again her own words were that the reports are reduced and cut in such a way as to not give away State secrets. That is absolutely right. There might be ongoing cases where we cannot compromise the missions of our security agents and we would not want them to do that. We need them to get the bad guys—we do. But we are not achieving what we set out to do. The inspector-general gave eight recommendations I believe in her latest report. Those recommendations were taken on board by the Minister and we are informed that they will be acted upon. That may be precedent but it does not mean that in the future the Minister will not simply say: “Thank you for your recommendations. I choose to ignore them and we will carry on as we currently are.” Thank you.JAMI-LEE ROSS (National—Botany):I rise to take a call to comment on and to rebut some of the comments being made by New Zealand First because I believe that the views expressed by Tracey Martin are somewhat misguided and very different from the very specific advice that the Foreign Affairs Defence and Trade Committee got during its consideration.I want to refer members to the departmental report. I think that Mrs Martin will probably enjoy reading a number of the clauses in this departmental report because they do dispel some of the myths that have been spoken about firstly in the submissions and then in this Chamber.There is a strong view held by some—and Mrs Martin expressed it—that the police can simply be called on by the SIS to exercise warrantless surveillance on behalf of the SIS. Well that simply cannot happen. In 1956 the SIS was separated from the police. The SIS and the police have very separate roles to play in our country. The police are all about enforcing the law. They are all about ensuring that crimes are detected and that people are put before the courts for those crimes. The SIS’s role is very different. The SIS’s role is to ensure that New Zealand’s security is taken into consideration and that there are detection powers in place so that New Zealand’s security can be protected.There is a good section in this departmental report that points out that “The NZSIS Act expressly states that it is not a function of the NZSIS to enforce measures for security. NZSIS consequently does not detain people or bring prosecutions. Investigating and bringing prosecutions for criminal offences including terrorism offences is a function of the Police.” The very reason why this bill is here is that there are instances where New Zealand’s security is at threat and the New Zealand SIS does not currently have the powers to conduct surveillance in a timely manner to keep New Zealand safe.Tracey Martin: Video surveillance.JAMI-LEE ROSS: No Mrs Martin you are incorrect. You are incorrect—sorry Mr Chair the member is incorrect. The police cannot undertake that power on behalf of the SIS. The police and the SIS have very different roles to play and that is an important point.I also want to refer to the comments that she made about the passport provisions. She is of the view that passport provisions in this bill are insufficient and unnecessary. There are also some very good comments in the departmental report that highlight the advice the select committee received—advice that Mr Tabuteau could have passed on if he wanted to. Some are of the view that the passport changes are too lengthy—that there should not be the power to cancel passports for 3 years.The very important comments that we received from the Department of the Prime Minister and Cabinet officials were that passport cancellation for 1 year is inadequate in some cases because individuals continue to remain motivated to travel. They also go on to say—and this is a very important point—that “Deferring notice of passport cancellations was considered justified in cases where notifying the person concerned could jeopardise the intelligence operation and in some cases increase the threat to public safety.” So everything you do with the legislation is about balancing the rights of individuals with the need to ensure New Zealand is kept safe to ensure that New Zealand’s threats—which are out there and they are very real—are kept contained.If there is a possibility that initiating further action under the existing sections of the Passports Act could endanger a security and intelligence operation could increase the threat to New Zealand then I do believe that there is justification for the Minister of Internal Affairs in certain extreme circumstances to cancel a passport for 3 years.I finally just want to point out the changes that were made around the Inspector-General of Intelligence and Security because I do not think they can just be glossed over. When the bill was first sent to the select committee the inspector-general very much had a role of receiving information once unwarranted surveillance was undertaken. The committee mulled over this quite a lot. We were very firm in the view that the inspector-general’s role should not simply be one where she receives reports when the unwarranted surveillance power is initiated but in fact she should have the power to investigate. Rather than just the inspector-general initiating investigations on her own behalf the legislation itself should say that the matter be referred to her for investigation. It is a very important point because simply receiving advice that unwarranted surveillance powers have been used is very different from receiving that advice and being required to investigate.It is important that we give New Zealanders confidence that if these powers have to be used there is sufficient monitoring over the top. That monitoring is by way of the inspector-general. If this bill goes through she has to investigate when that power is used. Additionally there was concern that if the destruction of materials when they are no longer required does not take place that first the fine is insufficient and two there needs to be additional monitoring around that.The committee also inserted clauses where the inspector-general is required to investigate if any matters are not destructed and if any matters—Tracey Martin: Are they shared with the “Five Eyes”? Are they shared with the other members of the “Five Eyes” and then destroyed?JAMI-LEE ROSS: I cannot hear what she is going on about. The powers around the inspector-general were increased in that matter. We also increased the fine that is put in place.We did consider these matters very seriously. I disagree fundamentally with Mr Tabuteau that the bill has not changed. It is very evident if someone goes through this bill that a lot of compromise was discussed here. A lot of changes to the bill have been made—changes that go so far as to get New Zealand’s main Opposition party coming to the table and saying yes these powers are necessary for New Zealand’s security situation. They are compromises that are designed to give New Zealanders confidence that whilst we look after New Zealand’s security intelligence information and take those issues seriously we also ensure there is proper monitoring in place and that is exactly what the changes here do.Dr KENNEDY GRAHAM (Green):I just want to pick up on some of the comments really add to what I said before about the clarity or the lack thereof in the legislation before us and pick up from the Hon Phil Goff. In his comments he explored the issue of section 5 of the Terrorism Suppression Act. That indeed is critical. He was good enough to acknowledge its shortcomings and let the Committee—Sitting suspended from 6 p.m. to 7.30 p.m.Dr KENNEDY GRAHAM: What I was wanting to do before the dinner break was to essentially reinforce my earlier comments in the Committee about what we in the Green Party see as the need for greater clarity in the terminology of the bill based on the understanding that this is a hugely important piece of legislation that is addressing constitutional rights to personal privacy and dignity of the individual and to pick up on the issue of the definitions and have regard to what the Hon Phil Goff was talking about in the sense of a definition of terrorism.If we look at the passage of the political narrative leading up to the bill and the initial legislation itself we see there is a kind of mutation. The Prime Minister on 5 November spoke about national security which of course is entirely valid but when the legislation itself came into the House it did not use the phrase “national security”. In fact that does not appear apparently in New Zealand law anyway; the term “security” does. The initial bill focused understandably on the definition of security coming out of the New Zealand Security Intelligence Service Act. In the course of the Foreign Affairs Defence and Trade Committee consideration we narrowed that down to terrorism and I think that was well informed.But when we look at the somewhat tortured relationship between the definition of “security” and the definition of “terrorism” we find that there is almost an inflationary interaction between those two definitions. Let me give an example of the difficulty we can get into. We are talking about countering foreign terrorist fighters and other violent extremists and we are still struggling to understand what they are. The definition of the first concept is in Resolution 2178. It needs to be in the bill and also violent extremists. But even if it is narrowed down to the definition of terrorism let us look at what that could conceivably mean.It is one thing to have a violent act of physical violence in New Zealand against New Zealanders; that indisputably is an act of terrorism. But the definition of terrorism in the 2002 Act goes way beyond that. If you look at section 5 of the Terrorism Suppression Act there are five subsections and section 5(1) the first subsection identifies three alternative actions. That then leads into the definition in section 5(2) which is an elaboration of section 5(1)(a) and it contains two actions. Then section 5(2) requires outcomes that are identified in section 5(3) and those are five outcomes and any one of those outcomes can obtain. So you have a permutation of five four and three outcomes. I am not a mathematician—no doubt there are some possibly scattered randomly around these benches—but my sixth-form imperfect mathematics would have that equalling somewhere around 120 potential actions coming out of the definition in section 5.Let me just give you one of those 120. If I understand the bill correctly based on an originating source of threat from the Islamic State of Iraq and the Levant in the Middle East the intrusive powers of covert warrantless 24-hour surveillance by the SIS in the bedroom of a New Zealander could be undertaken if there is a suspicion that that New Zealander is facilitating an action that is motivated by an ideological cause intended to exert undue compulsion on the Government to abstain from doing something that will result in major environmental damage. That as I understand it is one of the 120 or so possible acts of terrorism. If I have an ideological cause an undue compulsion on the Government to abstain from doing something and incur major environmental damage that makes me a terrorist and that warrants a camera in my bedroom.Hon CHRISTOPHER FINLAYSON (Minister in charge of the NZ Security Intelligence Service):I will address the point raised by Dr Graham in a minute but first I want to address questions that have been raised a number of times today about who would be caught by the definition of “terrorist act” and thereby become liable for having their passports cancelled. A number of hypothetical instances have been raised. I tried to deal with them in the second reading speech but I will just try to go through section 8A of the Passports Act and the proposed new schedule fairly carefully for the benefit of members again.The first point that I think needs to be noted is that each and every case is different and turns on its own facts so I cannot give absolute blanket assurances in the House about whether someone will or will not be caught. The second point to note is that the test to be satisfied before a passport can be cancelled has a very high threshold. There has to be sufficient information available to satisfy the Minister of Internal Affairs on reasonable grounds and the following conjunctive tests: that the person is a danger to the security of New Zealand or any other country because they intend to engage in or to facilitate a terrorist act that the danger cannot be effectively averted by other means and that the cancellation of the passport will prevent or effectively impede the ability of the person to carry out the intended action. All three limbs of the test must be satisfied before a passport could be cancelled. The third point is that the legislation does not prevent New Zealanders from travelling to these areas although we would strongly advise against it.That is the point I guess I was trying to make in the New Zealand Herald article that Mr Goff was referring to. I am not saying you cannot travel to these areas but I am saying it is not the cleverest thing that you could possibly do with your life assuming you will be able to hold on to your life if you go there. The only people who will be caught are those who intend to carry out or facilitate the terrorist act. Again—and it must be emphasised—when one looks at the ingredients of the clauses sufficient information would be required to satisfy the Minister on reasonable grounds that the elements of that definition have been met. So clearly take this hypothetical: if someone from the Assyrian Christian community in Wellington wants to go to Mosul to see their family and to provide whatever support they can in a horrific situation one could advise them against going but clearly there are no grounds to stop them going. Humanitarian workers and those who go to help their families in a dangerous environment will obviously not meet the test. If they join a group engaged in conflict they will not be caught simply because of that fact—in fact one could classify them in moral terms as freedom fighters. They must intend to commit or facilitate a terrorist act before their passport can be cancelled.The power is used sparingly. My advice is that only nine passports have been cancelled under section 8A since 2010. The other point that I made in my second reading speech and in the introduction to the Committee stage this afternoon is that the exercise of this power is subject to appeal to the High Court and with leave to the Court of Appeal. The court can substitute its own discretion for that of the Minister to confirm to modify to quash the decision so it is a real check and balance on the Minister’s decision making.Mr Goff and Dr Graham raised some interesting points about the definition of “terrorist act” and I hear what they are saying. We are not dealing with clause 5 as such in the debate tonight because it is already in the Terrorism Suppression Act but I for one think that the definition of “terrorist act” is a challenging one. It has been drafted to meet our international obligations and some amendments were made to it in 2007 I think to make our laws more consistent with our international obligations. It is used in a number of statutes and not just for passport cancellation. Careful consideration will need to be given to any amendments to make sure we continue to meet our international obligations. I am perfectly happy to raise that with other Ministers because I think it is something that could be included in a wider review of the criminal law applying to this area.In that context I refer honourable members to Part 5 of the Crimes Act. I have talked about looking at the “Crimes against public order”. Treason is there. Seditious offences were once there as Mr Mark knows but it was repealed in 2007. You have got slave dealing piracy and so on. It is fair to say I think that Part 5 is overdue for consideration. Part of the review of what we are doing will involve looking at Part 5. In that context one could actually take a good look at the definition of terrorism but not simply—well the point I want to emphasise is that we have to be consistent with our international obligations and the definition is used in a number of statues. So I am very happy to look at that because it is probably timely to do so.The other point I would make about reviews—and this comes from section 21 I think it is of the Intelligence and Security Committee Amendment Act 2013—is that what we are going to be doing next year which has to be commenced before 30 June 2015 is a review of the intelligence and security agencies the legislation governing them and their oversight legislation. Some of the points that Mr Goff made about the Inspector-General of Intelligence and Security—I think they were very cogent points. All that is up for review in the period of 2015.What I hope will happen is that both the reviewers and the Intelligence and Security Committee will be consulted. I will make a point of independently consulting Mr Goff and Mr Shearer on the reviewers the terms of reference of the review and so on. The reviewers will be able to look at this area in 2015 and then there will be ample time in 2016 for a full select committee process and then a principled debate on whatever emerges with a view to concluding that before the sunset period hooks in which will be as has been confirmed in the legislation tonight 31 March 2017.I think that there is ample opportunity to have a good look at all these matters both the sedition questions that was raised by Mr Peters—well good luck to him in his quixotic quest to exhume sedition. Certainly in terms of Part 5 of the Act the public order offences and the definition of “terrorist act” all that can be looked at as a separate piece of work.Dr SHANE RETI (National—Whangarei):I would like to take a short call just to respond to some of the issues that have been raised around data acquisition and data retention. I would like to focus on the submission on the Countering Terrorist Fighters Legislation Bill from the Privacy Commissioner who is of course that person who is empowered under the 1993 Privacy Act to be responsible for data access data security crossmatching registries and that sort of thing. I would like to talk to what he states as his three areas of concern: one the duration of visual surveillance warrants. We have successfully reduced that to 24 hours. Point two is the controls around warrantless surveillance powers. Again we introduced counter-terrorism as being one of the thresholds that is now required. His third point his third area of concern was clarifying the continuation of controls around access to passenger name record data under the Customs and Excise Act. Can I point out that we also included in this agreement that the access agreement between the New Zealand SIS and the New Zealand Customs Service must have Privacy Commissioner involvement. So those are the three main areas on the front page of his submissions and we have addressed them I would have thought rather well.Could I pick up on another two points. The honourable member Phil Goff commented that yes the fines have been increased from $1000 to $10000 for data that has been acquired under visual surveillance that is not relevant to the detection of activities prejudicial to security or gathering foreign intelligence information that is essential to security. I think it is a really important point. The comment was made around intention: what is our intention? There is our intention right there—to be punitive around data that has been collected for a purpose that we are not wanting it to be collected for. Thank you.DAVID SHEARER (Labour—Mt Albert):Can I just start by thanking the Minister in charge of the NZ Security Intelligence Service Christopher Finlayson for clarifying those points. I think that is useful. “Committing or facilitating a terrorist act” I think encompasses it and it also puts that explanation in context with his comments on the weekend. I think if we are required to look at this legislation in the context of a court case or whatever in the future those points will be helpful in terms of where we want to go with it.I also think that it would be useful to look at the definition of terrorism. It has evolved significantly with what has happened over the last few years and I think the review if it was able to look at that definition would take into account many of the comments that we received in terms of submissions and some of the questions we were asking ourselves as well.I just want to comment on Mr Tabuteau’s contribution just before the dinner break. I have to say it has been one of the few times I actually wholeheartedly agree with the comments of Jami-Lee Ross. I do not think I could fault them actually.Jami-Lee Ross: You’re hurting my career.DAVID SHEARER: Yeah I know.Ron Mark: A coalition coming up!DAVID SHEARER: A grand coalition—somebody else is going to be squeezed out!There were extraordinary compromises in this bill. When we look at the first bill that we were confronted with and what we have got now we have got a much better bill I think and a much tighter bill. It is much more confined to what the issues were in front of us. Quite apart from the process which we have made comment on before I actually do believe that we have come a long way and we should actually acknowledge that. I think we have landed pretty well when we consider that this is a temporary piece of legislation that is meant to last for a pretty short period of time.There are a couple of issues in and around that. I mean there was a comment made by the Inspector-General of Intelligence and Security about her role being to advise the Minister. I actually think that the word “advise” is something we need to look at because to some extent we see the Inspector-General of Intelligence and Security very much being the watchdog. In fact we have increased that power within this bill—and I think Mark Mitchell mentioned this in his contribution—so that she has a greater ability to look into the various parts of what this bill is setting up to do. The “advise” word—I mean it is not “facilitate” “help” or whatever you were mentioning Mr Tabuteau. Actually the word was “advise”. I think there is probably some clarity around that that the review could possibly take up as well.I have to say again—and I think I said it in the second reading speech—that we were very impressed with the ability of the inspector-general to conduct her role effectively. She went into the fact that she has 24/7 access to the SIS and the Government Communications Security Bureau (GCSB). She and her team can look into any aspect of those organisations at any time whenever they want. Some of the most top-secret issues will need to be cleared with the director but otherwise they are free to do whatever they like. They will be up to speed and be able to do that by January next year. I have to say these were the changes that were made in the legislation last year and they were very positive changes. But I do not really think they have had the air time that they really deserve. I think that in many ways at the legislative level of the oversight of these intelligence committees—and I am not talking about the political level; there are massive problems there—we are very close to providing the degree of oversight that I think we need to have. I do believe that is very positive.It was interesting that the inspector-general herself in her submission talked about the role that her counterpart in Australia has in looking at the various avenues of intelligence that they are able to look at. Whereas we are confined to the SIS and the GCSB her counterpart can also look at the committee within the Department of the Prime Minister and Cabinet as well as military intelligence. So it is a broader role. We might want to leave that for a review but again it is an issue that I think probably needs to be looked at in terms of the confines of that role and how that role takes place.Having said all that I think there was one area—notwithstanding the Minister’s explanation around terrorist freedom fighters etc. and making those sorts of distinctions—where I do not think we quite got to a conclusion to the satisfaction of this side of the Chamber. We let it go because I think the other issues were in many ways more important. That area was the issue of the extension of passports being withheld from 1 year out to 3 years. I think we were unconvinced by the rationale of needing to have to extend that out to 3 years.There was a lot of talk as we went into the Foreign Affairs Defence and Trade Committee about somebody being rendered stateless if they got their passport taken away from them. Clearly that is not the case. If you have your passport taken away from you you are still a New Zealand citizen. You are not stateless. Likewise if your passport is taken away from you when you are offshore you still remain a New Zealand citizen. Although you might not have a passport the Minister must according to the legislation provide an avenue—effectively a straight-line avenue—for you to return to New Zealand; otherwise that would be totally unfair.But the issue of the extension out to 3 years is something that I think we were as I say unconvinced about even after questioning both the director of the SIS and the officials from the Department of the Prime Minister and Cabinet. A passport can be withheld for 1 year. It can be done without having to provide explanation for up to 30 days. We accept that. Extensions of more than 1 year can be granted at the moment with a High Court judge providing that extension. The High Court judge obviously has to be convinced that there is still evidence that this person will go off and be a terrorist fighter or commit a terrorist act if they leave the country.The argument that was put to us was well sometimes these people do not necessarily show themselves. They might lie low and we might not have that evidential test. I think that is kind of going into grounds that I find are a bit dubious. Likewise the other explanation given was that taking a passport away from somebody for 3 years or 2 years or whatever is somehow less problematic than doing it year after year after year—taking it away then taking it away again; in effect extending it and extending it. Again I am not sure that I am particularly convinced by that and it did not sound particularly convincing coming from the people whom we asked. Added to that is the fact that this legislation has a life only until April 2017. It is conceivable that in March 2017 you could withhold somebody’s passport for 3 years from that date notwithstanding that the legislation might say something completely and utterly different. This is also a point that was brought up by the Law Society. We were not convinced that this was an area that we felt was particularly justified.On the other hand I will accept—and I think this is the reason why in the end we let it go through—that it is possible to make a submission to the Minister within 30 days. You can take it to judicial review and if it goes to any more than 1 year to possibly 3 years the Minister is bound to go back to that person who had their passport taken and invite them to make a submission in order to be able to have their passport back. Notwithstanding that I do think this is one area that we need to be taking a much better look at and certainly a much better look at when it comes to the broader review that is coming down the track. Thank you.FLETCHER TABUTEAU (NZ First):I just wanted to raise a point that was brought up before the break by a member on the opposite side of the Chamber. The member spoke about the reasons why we need this 3-year extension to the passport cancellation process. He said that it might create some discord or upset the person involved and it might pay not to tell them that their passport has been cancelled. But actually under this legislation the Minister must take all reasonable steps to notify the person that their passport is to be cancelled. They have a right of appeal process which we are obliged to undertake. They cannot appeal if they do not know that their passport has been taken off them. It seems a bit nonsensical.The main point I would like to finish our discussion on tonight is around the process of warrantless surveillance. Under new section 41B(10) inserted by clause 9 we are told that “As soon as practicable after the expiry of a visual surveillance warrant the Director must ensure that any records resulting from the visual surveillance undertaken under that warrant are destroyed …”. We spoke about penalties if any data was retained unlawfully and inappropriately and absolutely that must be the case. But under this current bill as it is written and I draw the attention of the Minister in charge of the NZ Security Intelligence Service to it this is “except to the extent that those records are relevant”. Actually in respect of the process of destroying data and of destroying evidence that was collected without a warrant or that was collected without a warrant further pursued by the offices or the SIS actually there is a clause in there that says OK let us keep it. At no point before or after is a warrant issued to collect that data necessarily. It says that we can do this “to the detection of activities prejudicial to security”. I reopen this can of worms about definitions and terminology and ask the Minister to consider what is meant by “activities prejudicial” to whose security and also “to the gathering of foreign intelligence information that is essential to security.” Again the question is what is essential and what is security?For me as an individual this has been one of the biggest bones of contention. There is obviously a lot more. I do not think the compromise has been sufficient for the New Zealand public. But in this particular instance we are asking New Zealanders to accept that we will gather information on them that we will keep that information and that data and that we will never seek to apply for a warrant or subsequently be issued with one. This is of huge concern to me around people’s human rights and their rights to privacy. Thank you.TODD MULLER (National—Bay of Plenty):I move That the question be now put.A party votewas called for on the questionThat the question be now put.Ayes64New Zealand National 60; Māori Party 2; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 32; Green Party 14; New Zealand First 11.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 40 in the name of the Rt Hon John Key to Part 1 be agreed to.A party votewas called for on the questionThat the amendments be agreed to.Ayes108New Zealand National 60; New Zealand Labour 32; Green Party 14; ACT New Zealand 1; United Future 1.Noes13New Zealand First 11; Māori Party 2.Amendments agreed to.The question was put that the amendment set out on Supplementary Order Paper 41 in the name of Dr Kennedy Graham to clause 4 be agreed to.A party votewas called for on the questionThat the amendment be agreed to.Ayes27Green Party 14; New Zealand First 11; Māori Party 2.Noes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Amendment not agreed to.The question was put that the amendments set out on Supplementary Order Paper 42 in the name of Dr Kennedy Graham to clause 4 be agreed to.A party votewas called for on the questionThat the amendments be agreed to.Ayes48New Zealand Labour 32; Green Party 14; Māori Party 2.Noes73New Zealand National 60; New Zealand First 11; ACT New Zealand 1; United Future 1.Amendments not agreed to.A party votewas called for on the questionThat Part 1 as amended be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Part 1 as amended agreed to.The question was put that the amendment set out on Supplementary Order Paper 40 in the name of the Rt Hon John Key to clause 9 and the following amendment in the name of the Hon Christopher Finlayson to clause 11 be agreed to:replace “41D” with “41E”.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 41 in the name of Dr Kennedy Graham to Part 2 be agreed to.A party votewas called for on the questionThat the amendments be agreed to.Ayes27Green Party 14; New Zealand First 11; Māori Party 2.Noes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 42 in the name of Dr Kennedy Graham to Part 2 be agreed to.A party votewas called for on the questionThat the amendments be agreed to.Ayes48New Zealand Labour 32; Green Party 14; Māori Party 2.Noes73New Zealand National 60; New Zealand First 11; ACT New Zealand 1; United Future 1.Amendments not agreed to.The CHAIRPERSON (Hon Chester Borrows): The amendment set out on Supplementary Order Paper 43 in the name of the Rt Hon Winston Peters to Part 2 is out of order as being outside of the scope of the bill.A party votewas called for on the questionThat Part 2 as amended be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Part 2 as amended agreed to.A party votewas called for on the questionThat the schedule be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Schedule agreed to.A party votewas called for on the questionThat clause 1 be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Clause 1 agreed to.A party votewas called for on the questionThat clause 2 be agreed to.Ayes94New Zealand National 60; New Zealand Labour 32; ACT New Zealand 1; United Future 1.Noes27Green Party 14; New Zealand First 11; Māori Party 2.Clause 2 agreed to.The Committee divided the bill into the Passports Amendment Bill the Customs and Excise Amendment Bill and the New Zealand Security Intelligence Service Amendment Billpursuant to Supplementary Order Paper 39.Bill reported with amendment.Report adopted.