Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the Minister in charge of the NZ Security Intelligence Service: I move, That the New Zealand Security Intelligence Service Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be considered by the Intelligence and Security Committee, and that the committee have the authority to meet at any time while the House is sitting except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
This bill focuses on amendments that will allow the New Zealand Security Intelligence Service to operate more effectively. It has three objectives. First, the provisions will maintain the operational effectiveness of the Security Intelligence Service by updating the warrant scheme to continue to allow for the use of modern technical methods of surveillance. Secondly, the provisions will maintain protections for those acting under warrant, including those exercising entry powers. Thirdly, the provisions will also improve operational efficiency by allowing a more flexible process for persons assisting under warrant.
The principal Act currently enables the Director of Security to apply for warrants to undertake certain surveillance activities. Surveillance activities encroach on personal privacy rights. As such, surveillance of this nature is not lightly authorised. Foreign warrants require the Prime Minister’s authorisation. In cases where any New Zealander is the subject of a warrant, such warrants are required by the principal Act to be issued jointly by the Minister in charge of the New Zealand Security Intelligence Service and by the Commissioner of Security Warrants. The warrants framework provides for the interception or seizure of documents, communications, and other things that could not otherwise be lawfully obtained by the Security Intelligence Service. The warrants also provide the powers that are necessary to give effect to the authorised interception or seizure, such as entry powers and search powers. Stringent conditions must be met before any warrant is issued. The Director of Security must demonstrate both to the Minister in charge of the New Zealand Security Intelligence Service and to the commissioner, in the case of domestic warrants, that the interception or seizure is necessary, either to detect activities prejudicial to security or to gather foreign intelligence information essential to security. Additionally, the value of the information must justify the interception or seizure, and the director must attest that the information being sought is unlikely to be obtained by any other means.
Notably, the proposals in the bill are restricted to powers that are subject to authorisation under warrant. As I have explained, the threshold to be met to issue these warrants is very high. The bill should not be seen as providing the service with unique powers; it should be seen as a bill that seeks to clarify and update the application of existing powers, particularly in areas where current legislation has been overtaken by developments in technology. The current warrant framework in the principal Act has become outdated. It addresses only those activities that would otherwise have been lawful at the time that the provisions were enacted, which in 1977 was interception and seizure, and in 1999 was entry. The underlying premise of the framework is that activities that were lawful at the time that the legislation was developed did not need authorisation by warrant, regardless of the extent of intrusion.
Changes in technology have also had an impact. In particular, the frameworks are not expressly configured to support the use of electronic tracking and some computer-based techniques used to collect information. The first change covers electronic tracking devices. The current Act does not expressly provide for the Security Intelligence Service to undertake the tracking of subjects by electronic means, so the bill will clarify that the warrant framework does cover the use of electronic tracking devices. Clauses 6 and 7 amend sections 4A and 4B of the principal Act to enable the Minister and the Commissioner of Security Warrants, in the case of domestic intelligence warrants, to issue intelligence warrants that authorise electronic tracking. The existing oversights scheme will be applied to these electronic tracking activities. The process of applying for warrants to authorise electronic tracking will be the same as that for warrants covering interception or seizure. So high thresholds, including tests of necessity and value and that the information cannot be obtained by other means, will need to be satisfied before any warrant can be issued. The House should note that the needs of New Zealand law enforcement agencies have previously been catered for in this area with the development of a tracking warrants framework in the Summary Proceedings Act 1957.
The next change made by the bill is to update the principal Act to provide a clear framework for facilities that are to be the subject of surveillance. Facilities include identifiers such as telephone numbers and Internet protocol addresses. The objective is to provide for the specification of cyber-identities in warrant applications. The amendment will allow warrants to be granted when specific facilities can be identified, but the name or the physical location of a subject is not known. This is a very necessary update in an age where the use of unattributable mobile phones and cyber-identities is common. The matter is one that has been specifically raised as a matter for legislative amendment by the Inspector-General of Intelligence and Security. The term “facility” will be defined in the interpretations section of the principal Act. The bill also introduces a definition of “identity”, which includes an alias adopted by, or assigned to, a person. Clause 7 amends section 4B of the principal Act to enable intelligence warrants to make facilities the subject of intelligence warrants.
Clause 5 amends the principal Act to rename interception warrants as intelligence warrants. The name “interception warrants” has never been representative of the range of surveillance activities. At present those warrants cover interception and the seizure of documents or things. With the amendment, they will also cover electronic tracking. Renaming them as intelligence warrants supports transparency by better reflecting the scope of warranted surveillance activity.
The authorities provided to the Security Intelligence Service require clarification in the area of computer-based surveillance. Section 253 of the Crimes Act 1961 already provides a qualified exemption to the access without authorisation offence for the service. The current approach of providing a qualified exemption for some activities relating to computers but not for others creates uncertainty for the intelligence agencies, as well as for other agencies acting under warrant. The current exemption may be insufficient to cover modern surveillance methods that may interfere with a computer system in a temporary or minor way, and the current arrangements do not recognise the merging of technologies, particularly in terms of phones and computers. Clause 17 therefore amends section 248 of the Crimes Act, which sets out definitions relating to computer-related offences. It inserts a new definition of “authorisation”, and this amendment will clarify that a lawfully issued warrant will constitute an authorisation for the purposes of the computer-related provisions in the Crimes Act.
The bill clarifies the protections in the principal Act for persons acting in accordance with a warrant. These amendments focus on two issues. First, the principal Act does not adequately protect from liability those persons exercising Security Intelligence Service entry powers when they are seeking to obtain or facilitate entry. Minor property interference is sometimes necessary in order to obtain entry and better protect the safety of persons exercising those warrants. Clause 8 will replace section 4E of the principal Act. It will clarify that those persons exercising Security Intelligence Service powers will be protected from liability when they are seeking to obtain or facilitate entry. Second, the Act will be amended to provide consistent protection to all persons acting under Security Intelligence Service warrants from liability, regardless of the foreign or domestic status of the warrant. Currently, protection applies only to domestic warrants, so it applies only when the subject of a warrant is a New Zealand citizen or resident.
A number of other changes will be made to the substantive legislation in order to improve practice.
Because of the operational sensitivity of the matters covered by the bill, public consultation was not undertaken during the policy development stage. Instead, in order to address the public interest in the area of privacy and to ensure the proposals were calibrated against appropriate oversight arrangements, the Office of the Privacy Commissioner, the Office of the Ombudsmen, the Commissioner of Security Warrants, and the inspector-general were consulted on the development of the bill. To enable members of the public to contribute, it will be recommended to the members of the Intelligence and Security Committee that public submissions on the bill should be invited and arrangements made to hear submitters who wish to appear before the committee. I commend the bill to the House.
