Shearer David: Countering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In CommitteeText is incorporated into the Bound VolumeShearer David: Countering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In Committee[Sitting date: 09 December 2014. Volume:702;Page:1234. Text is incorporated into the Bound Volume.]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.