Graham KennedyDr KENNEDY GRAHAM (Green): The Green Party opposes the New Zealand Intelligence and Security Bill. We respect the intention of the Government and especially the Attorney-General the Hon Chris Finlayson and also the reviewers whose report underpinned the legislation. We acknowledge though not without critical scrutiny the changing global context in which the report and the legislation are conceived. The issue is this: what mix of constitutional principles is optimal for our nation at any one time? In that respect my party takes a different position from the Government. The stated purpose of the bill is to protect New Zealand as a free open and democratic society". It is to achieve that by "establishing intelligence and security agencies that … contribute to … [our] national security … international relations … [and] economic well-being … [with] adequate … functions powers and duties". Those functions are to be performed "in accordance with [domestic] law and all human rights obligations … subject to institutional oversight and appropriate safeguards". The bill fundamentally restructures New Zealand's legislation pertaining to intelligence and security. Throughout its history New Zealand has had separate legislation covering these issues and for good reason.It has had four pieces of legislation in fact: the New Zealand Security Intelligence Service Act of 1969 the Intelligence and Security Committee Act of 1996 the Inspector-General of Intelligence and Security Act of 1996 and the Government Communications Security Bureau Act of 2003. The bill sweeps all of this separate legislation into the one single Act. It is not going too far to say that given the basic nature of the values and principles involved this is primary legislation with constitutional implications. This sweeping restructure we are told is for two reasons—first a heightened threat level: the past half century has seen a growing sophistication of security threat; second efficiency: there is a consequent increased need for the SIS and the Government Communications Security Bureau to work together and pool their resources and pool their expertise and they are hampered in this respect by having separate legislation.So on that basis the bill proceeds to fundamentally amend primary legislation by virtually blending two agencies under a single authorisation framework and providing for joint warrants. We shall probably have occasion in the Foreign Affairs Defence and Trade Committee to explore the intricacies of the 150 pages of the bill. If it goes into the committee we shall be interested to learn what New Zealanders think of it. Meanwhile this first reading is the occasion to reflect on the fundamental principles behind the bill that argue for or against its passage. Let me offer a few comments.The bill is the direct child of the Cullen-Reddy review the first independent review of intelligence and security in the country's history which was called for in the 2013 amendment. The report is a substantive and thoughtful document a considerable portion of which we disagree with. The report is headed "Intelligence and Security in a Free Society" thereby advancing the presumption that intrusive powers and civic freedoms are compatible. It opens by advancing what it calls two extreme views of the place of intelligence and security in society. One extreme is that State and individual security overrides other considerations. The other is that freedom and liberty are so precious that any secret activity by State agencies inevitably threatens those human rights. Most people's views the report says lie between these two extremes as do those of the reviewers. Voila! The review has just attained unction having mortgaged the centre ground by assertion.The review recommends and the bill states that its fundamental purpose is the protection of New Zealand as "a free open and democratic society". This becomes what is called the guiding principle by which the activities of the agencies must be judged. Yet in paragraph 12 the review asserts that "The Agencies' activities are by their nature intrusive." Intelligence-gathering on a citizen that is in any way and to whatever extent intrusive by definition encroaches into the human rights of that citizen. How can we gather covert intelligence about a citizen without intruding into that citizen's right to personal privacy? We may claim justification but we cannot claim we are protecting a free society and in the next breath acknowledge that the action is intrusive. It is too cute. To the extent that the intrusion exists that is the extent of encroachment on freedom. That is not an extreme view; it is a palpable truth.In chapter 1 the review says that "We have approached this question from the perspective that security and privacy are complementary rather than competing rights." In support of this it cites the Universal Declaration of Human Rights article 3 pertaining to life liberty and security of the person. It does not cite the UN Declaration on the Rights of Indigenous Peoples which reaffirms that indigenous peoples in the exercise of their rights should be free from discrimination of any kind—something that our State security apparatus has not displayed a huge amount of respect for in the past. The review asserts that "Most rights are not absolute." and it cites the New Zealand Bill of Rights Act which provides that "Rights may be subject … to such reasonable limits … [that] can be demonstrably justified in a free and democratic society." It does not cite the International Covenant on Civil and Political Rights which identifies certain non-derogable rights.Setting aside for the moment whether intelligence gathering breaches those rights it is not proven in the review or the bill why the expansion of intrusive powers is justified. It is simply asserted that times have changed and the threat has increased yet the official level of threat assessment for New Zealand remains "low" revised up from "extremely low" in October 2014. A "low" threat level is defined as possible but unlikely. Neither the review nor the bill explores this in detail yet the bill rests its justification for centralised expanded and intrusive State powers on this basis. That is at the least contestable. The New Zealand assessment differs from those in the US UK France Belgium and Australia. The vulnerability of a country to global terrorism is broadly correlated with the extent of its military engagement with terrorist groups. The Green Party has maintained that terrorism should be regarded and managed as a criminal issue both domestically and internationally not treated as a threat to international peace and security. The only exception to this might be Islamic State which possesses territory claims universal jurisdiction and declares war against UN member States. That is debatable. But most terrorism around the world is domestic in nature and focus and should not be hyped as an integral part of a global security threat.The review recommends that the Attorney-General be the responsible Minister to approve tier one and tier two authorisations for intrusive powers. As the principal officer of the Crown the Attorney-General is the appropriate member of the executive branch to take into account human rights implications and ensure that the rule of law is upheld. This raises the issue of the relationship between terrorism and the use of force by the State including a foreign State; and between warrants for intelligence gathering based on suspicion of terrorist activity on the one hand and for criminal liability based on suspicion of breaches of the law of genocide war crimes or crimes against humanity on the other hand. It is one thing to authorise a warrant to intrude into the private behaviour of a New Zealand resident; it is another to issue a warrant for the arrest of a visiting foreign leader for the excessive use of force as occurred in 2006 in this country when the then Attorney-General saw fit to quash a magistrate's arrest warrant against a foreign leader within 24 hours of its authorisation. The rule of law works both ways if a free open and democratic society is to retain its integrity.The problem with this bill is that it authorises the centralisation and extension of intrusive State power into the private lives of individuals after a spate of inquiries have shown the loose regard for law that those relevant agencies have maintained. There are many nuances to this all-important bill and no doubt we shall explore them in a select committee. Suffice it to record here in this first reading that the Green Party sees no sufficient case as laid out in the independent review to justify the centralisation and expansion of intrusive State powers incorporated in the bill. We shall therefore be voting against it."