Goff Phil: Countering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In CommitteeText is incorporated into the Bound VolumeGoff Phil: Countering Terrorist Fighters Legislation Bill — Second Reading Instruction to Committee In Committee[Sitting date: 09 December 2014. Volume:702;Page:1240. Text is incorporated into the Bound Volume.]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.