Finlayson ChristopherPart 4 AuthorisationsHon CHRISTOPHER FINLAYSON (Attorney-General): I did not think anyone would allow this part to go through on a nod because it is a very important part and it is at the heart of the legislation. It is only fair for members of the Committee if I say a few words and then I expect that there will be quite a lot of discussion.The first point relates to the authorising Minister. I recall Mr Little raising in his first reading speech the appropriateness of the relevant Minister for warranting purposes being the Attorney-General—which is what the reviewers had proposed—or whether it should be the Ministers in charge of the agencies. That got me thinking. I think it got the Foreign Affairs Defence and Trade Committee thinking and the conclusion of the select committee as a result of hearing those kinds of arguments and also having heard from the inspector-general was that the Attorney-General should not be the person who does the authorising but it should be the Commissioner of Security Warrants and the Minister in charge of the agency. Having reflected on it I totally agree with the select committee and think I was wrong to have moved on the reviewers' recommendation.One of the reasons I say that is that it is the Minister responsible for the agency who issues the ministerial policy statements so I would have thought it was very important for that Minister also to be involved in if you like the everyday activity of a Minister responsible for the agency—namely dealing with warrants. In any event the Attorney-General should be remote from a lot of the warranting stuff. The Attorney-General's concern is to stand back and make sure the business of Government is conducted in accordance with the rule of law and should not really be at the coal-face on this sort of matter. So I am very happy to accept that recommendation and think it is absolutely correct.Can I say something about Part 4—which I have already been talking about. It contains the authorisation regime and it provides lawful authority—the very thing that the Committee has been talking about off and on throughout the afternoon and the evening—for the carrying out of otherwise unlawful activities and it confers on the agencies the power to give effect to authorisations granted under this part.There are a number of changes to Part 4 that the select committee has made and we accept all of them. I think these have provided for the opportunity to reorganise Part 4 to make it much clearer what the nature is of the powers conferred on the agencies and the circumstances in which they apply. It is interesting to note that the committee went through all classes of warrants and some unnecessary powers have been removed or limited.Let me give the Committee an example of where the select committee I think has done really good work. The bill as introduced provided for purpose-based warrants and this would have enabled the issue of a warrant without any need to specify the persons in respect of whom or the places at which activities would be carried out. The committee has recommended the removal of purpose-based warrants on the basis that class-based warrants are available under the intelligence warrant regime and will meet the operational needs of the agencies while still requiring greater specificity than purpose-based warrants would have. I agree with that and I think that that is going to encourage much better oversight—and more effective oversight—of activities.The second point I want to make concerns the enhanced protections in the warranting system—for example in clauses 53 and 57. In clause 53 there is this requirement of due particularity in warrant applications. So an application for an intelligence warrant has to be in writing obviously amongst other things and must set out detail of the activity proposed to be carried out under the warrant;" and "set out the grounds on which the application is made (including the reasons why the legal requirements" have been met. That is an example of the specificity that is required in the warranting system. Secondly I refer members to clause 57 dealing with the "Additional criteria for issue of intelligence warrant". A new criterion has been added to the matters that the Minister and in the case of a type 1 warrant the Commissioner of Intelligence Warrants must be satisfied of before issuing a warrant—clause 57(d)(ii): "all reasonably practicable steps will be taken to minimise the impact of the proposed activity on [any] members of the public;".I then refer honourable members to clause 67 in which the protections for privilege now cover—you can see the underlined phrase—privileged information as well as privileged communications and provide protection for settlement negotiations and mediations as recognised in the Evidence Act 2006.Can I just then refer to the rewording of certain key provisions in the warranting regime so as to better reflect the purpose and the nature of the activity being authorised. The removal of the training and testing warrants from the intelligence warrant regime—in I think Subpart 1 of Part 4—has enabled some wording changes to key provisions so that the language used better reflects the nature and the purpose of proposed activities.Type 1 warrants now authorise otherwise unlawful activity "for the purpose of collecting information about or to do any other thing directly in relation to—(a) any person who is—(i) a New Zealand citizen; or (ii) a permanent resident …". As we know type 2 warrants authorise the carrying out of otherwise unlawful activity for the purpose of collecting information or to do any other thing in circumstances where a type 1 warrant is not required. The language that I have just quoted of doing "any other thing directly in relation to—" is intended primarily to cover GCSB cyber-protection activities where the person is not collecting information about the New Zealand person but doing so is the inevitable result.The third point I want to make concerns the creation of stand-alone regimes for each different category of warrant. Training and testing activities were provided for in the bill at introduction as a purpose for which an intelligence warrant could be obtained. This led to difficulties in framing and drafting some of the warranting provisions in order to accommodate these purposes. A number of submitters were also concerned about the scope of these new types of training and testing warrants. Accordingly training and testing activities are now separately dealt with in a stand-alone regime in Subpart 3A of Part 4 and they are the warrants that are called "practice warrants". As part of the separation of practice warrants from the intelligence warrants regime the safeguards from the intelligence warrants regime have been replicated but it is important to note that some additional ones have been added. All practice warrants are subject to the triple-lock regardless of the nationality of those who may be affected by the activities and there is mandatory reporting on the conduct of the activities under a practice warrant—reporting both to the Minister and to the inspector-general.There are just a couple of other points I want to make about the further limiting of practice and removal warrants. It is important to note that the activities able to be exercised under a practice warrant have been constrained on the recommendation of the select committee. Human intelligence activities and the NZSIS' power of entry are not available under a practice warrant.Removal warrants have also been limited in their application. At introduction the bill would have enabled the GCSB to obtain a removal warrant and give effect to it. This would have conferred a power of entry on the GCSB to retrieve devices. In contrast the situation with intelligence warrants where the GCSB has an obligation to work with the SIS to access powers of entry the select committee recommended removal warrants be limited to the SIS only. Where the GCSB requires removal of a device from private premises or property the SIS will apply for a removal warrant and will carry out that removal on behalf of the GCSB.There are a couple of terminology changes. The term "information" has been substituted for "intelligence" in a number of places in Part 4 and as I said I think Part 4 is now better organised. Can I simply refer finally to the—Mr Chair?The CHAIRPERSON (Hon Trevor Mallard): Um—Hon CHRISTOPHER FINLAYSON: I anticipated the bell.The CHAIRPERSON (Hon Trevor Mallard): Yes. We will let the Minister run no matter the normal two-call rule.Hon CHRISTOPHER FINLAYSON: OK thank you Mr Chair. The only other point I was going to make related to the proposal about—this is in clause 47—raising the threshold for serious crime in type 1 warrants from any offence punishable by 2 or more years' imprisonment to any offence punishable by 3 or more years. That change applies only in the context of type 1 warrants not to serious crime in the context of incidentally obtained information. Mr Parker suggested that to me a few days ago. I have gone away and thought about it and am happy to go along with that."