New Zealand Intelligence and Security Bill

New Zealand Intelligence and Security Bill

Government Bill

158—2

As reported from the Foreign Affairs, Defence and Trade Committee

Commentary

Recommendation

The Foreign Affairs, Defence and Trade Committee has examined the New Zealand Intelligence and Security Bill, and recommends by majority that it be passed with the amendments shown.

Introduction

The bill seeks to update the legislative framework governing New Zealand’s intelligence and security agencies and to improve their transparency. It would create a single Act to cover the agencies.

The bill would implement the Government’s response to the independent review of intelligence and security in New Zealand conducted by Sir Michael Cullen and Dame Patsy Reddy. In particular, the review recommended that the Government Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS) and their oversight bodies (the Inspector-General of Intelligence and Security, and the Intelligence and Security Committee) be covered by a single, comprehensive piece of legislation.

The bill would replace the four Acts that currently apply to these agencies and oversight bodies, carrying over important protections around political neutrality, lawful advocacy, protest, and dissent. Having one piece of legislation would make the law much easier to understand.

The bill as introduced contains:

  • shared objectives, functions, and powers for the agencies

  • provisions to bring the GCSB and the NZSIS within normal State sector arrangements, establishing the NZSIS as a public service department under the State Sector Act 1988, and making the GCSB fully subject to that Act

  • a single authorisation regime applying to both agencies that covers their intelligence collection and protective security functions

  • a comprehensive information-sharing regime to support the agencies to carry out their functions, and to ensure clarity and transparency around their access to information

  • significant enhancements to the oversight institutions and their roles

  • provisions to continue those enacted in legislation stemming from the Countering Terrorist Fighters Legislation Bill in 20141, including amendments to the Passports Act 1992 concerning travel documents.

The NZSIS’s ability to act in relation to New Zealanders has been constrained through the limitation of Type 1 intelligence warrants to the national security objective. A warrant may only be obtained against a New Zealander for the international relations and well-being, and the economic well-being objectives if that person is acting as an agent of a foreign power.

The prohibition on the GCSB acting for the purpose of intercepting the private communications of a person who is a New Zealand citizen or permanent resident of New Zealand has been removed, and replaced by the triple-lock authorisation and review mechanism provided for in Part 4 and Part 6 of the bill.

The committee’s intention in addressing these matters has been to ensure improvement in the efficacy of the oversight of the agencies, while allowing for proper improvement in operational effectiveness as is required, to ensure that the human and legal rights of New Zealanders are appropriately protected.

The committee’s consideration of the bill

We would like to thank the many organisations and individuals who have helped us in our consideration of the bill by sharing their views with us. This has helped us develop legislation that we believe is now fit for purpose and provides a good balance between protecting the freedoms enjoyed in our society, keeping New Zealanders safe, and providing oversight to ensure that the intelligence and security agencies’ powers are exercised properly.

In particular our amendments seek to:

  • limit the range of powers that are available to the intelligence and security agencies in certain circumstances (for example, practice warrants and removal warrants)

  • remove powers that cannot be readily justified by operational need (we recommend removing purpose-based warrants)

  • provide the Inspector-General of Intelligence and Security with the practical means to exercise her oversight role more effectively (we recommend a number of new registers).

This commentary covers the main changes we recommend to the bill. It does not discuss minor or technical changes.

Change to title

We recommend removing “New Zealand” from the title of the bill so that the name of the Act as set out in clause 1 would be the Intelligence and Security Act 2016. We consider that the word “New Zealand” is redundant because the legislation would only apply in this country.

Definition of national security to be replaced

We recommend deleting clause 5 of the bill as introduced, which would define national security. We consider that the nature of this definition would require the intelligence and security agencies to make difficult judgements about when the definition applied, and when their powers could be invoked.

In our view more certainty is needed, and we recommend replacing the definition of national security in clause 5 with new clause 55A. This clause would define the circumstances in which the intelligence and security agencies may take action, in respect of New Zealanders, in pursuit of their national security objective. The clause provides a closed list of things that could be broadly described as matters of national security.

Two-part test for issue of Type 1 intelligence warrant

Clause 55A would set out a two-part test to determine whether a Type 1 intelligence warrant may be issued. Type 1 warrants are always required in relation to New Zealand citizens or permanent residents.

First, the authorising Minister and a Commissioner of Intelligence Warrants must be satisfied that the proposed otherwise unlawful activity would be necessary to contribute to the protection of national security. This would act as a filter when considering a matter.

Second, the intelligence agency’s activity would be necessary to identify, enable the assessment of, or protect against one or more of the limited number of harms listed in clause 55A(2). These harms include terrorism or violent extremism, espionage or other foreign intelligence activity, sabotage, proliferation of weapons of mass destruction, serious crime, interference with information or information infrastructures of importance to the New Zealand Government, and the threats listed in clause 55A(2)(g). We have carefully considered the parameters around each of these harms to ensure that the intelligence and security agencies’ powers may only be invoked in relation to New Zealanders in circumstances where this is justified.

We consider that this approach will provide greater certainty about the protections applying to New Zealanders and when the agencies may invoke their powers.

Registers of assumed identities and legal entities

Part 3 of the bill would enable an employee of an intelligence and security agency to acquire, use, and maintain an assumed identity to help the agency to maintain the secrecy of its activities and to protect the identity of the employee. It would also allow an intelligence and security agency to create and maintain a legal entity to help the agency to maintain the secrecy of its activities.

We recommend including new subpart 3 in Part 3 which would provide for each of the intelligence and security agencies to keep a register of assumed identities acquired, and legal entities created or maintained by that agency. Clause 45A(2) would require each register to include details of authorisations and directions given, and requests for assistance that have been made, under Part 3. Clause 45A(3) would provide for the register kept by an intelligence and security agency to be accessed at any time by the Minister responsible for that agency, and the Inspector-General of Intelligence and Security (IGIS).

We consider that having registers available for inspection would enhance the ability of the IGIS to exercise effective oversight in relation to the creation, use, and maintenance of assumed identities and cover entities.

Minister to issue intelligence warrants

We recommend amending clause 53(2)(a) and (3) to provide for applications for intelligence warrants of Type 1 (concerning New Zealanders) to be made jointly to the Minister responsible for the intelligence and security agency concerned, and the Chief Commissioner of Intelligence Warrants (instead of to the Attorney -General and the Chief Commissioner of Intelligence Warrants, as provided in the bill as introduced). Applications for Type 2 warrants (concerning non-New Zealanders) would be made to the Minister responsible for the intelligence and security agency concerned, rather than to the Attorney-General (as provided for in the bill as introduced).

Being responsible for issuing warrants would ensure that the responsible Minister is aware of the day-to-day business of the agency, of which warrants are a significant component. The law officer function of the Attorney-General is also not necessary, as the involvement of a Commissioner of Intelligence Warrants provides the input of an independent judicial officer.

Nationality of people under intelligence warrants

Clause 50 of the bill as introduced would provide for two types of intelligence warrants: Type 1 and Type 2. Clause 51 provides that Type 1 intelligence warrants would authorise an intelligence and security agency to carry out otherwise unlawful activity in respect of New Zealand citizens or permanent residents. Our amended clause 52 would provide for Type 2 intelligence warrants to authorise this activity where a Type 1 warrant is not required; that is, for people who are not New Zealand citizens or permanent residents.

We are aware that there may be situations, such as a terrorist cell, involving both New Zealanders and non-New Zealanders. In such situations the bill as introduced would require agencies to obtain separate warrants for the different people in the group, creating an unnecessary administrative burden. Therefore, we recommend amending clause 51(b) to enable Type 1 intelligence warrants to be sought where the class of person to be targeted includes New Zealanders and non-New Zealanders.

Clause 63(1) of the bill as introduced would prevent the intelligence and security agencies circumventing these provisions by requesting a foreign Government to undertake the collection of information sought by the warrant. The Directors-General are under a general duty to act in accordance with New Zealand law and all human rights obligations recognised by New Zealand law.

Practice warrants for testing and training

Clause 57(a)(ii) and (iii) of the bill as introduced would provide for the issue of intelligence warrants to test equipment (such as interception devices), maintain or develop the capabilities of an intelligence and security agency, or to train employees. We consider that warrants for testing and training are necessary, and should be properly and formally authorised. However, we believe the controls on this kind of activity should be more stringent than those applying to interception for intelligence-gathering purposes. Including the training and testing warrants in the intelligence-warranting provisions has added complexity to the bill, and caused confusion about the meaning and intent of these provisions.

Therefore, we recommend deleting clause 57(a)(ii) and (iii) and replacing these provisions with new subpart 3A in Part 4. This would provide for two types of practice warrant: testing warrants and training warrants. Our proposed new clauses 91 to 91M would set out the requirements for the application and issue of a practice warrant, and the powers of each of the intelligence and security agencies in regard to practice warrants. They would also provide for reporting on practice warrant activities.

We are satisfied that the practice warrants would be subject to the same approval process as a Type 1 warrant, and that the range of activities that might be conducted and powers that may be exercised under these warrants is more limited than for intelligence warrants.

Due particularity in applications and additional criteria for issue of intelligence warrant

We recommend replacing clause 53 to require each warrant application to contain more information. This would include specifying the type of intelligence warrant applied for, details of the activity proposed to be carried out under the warrant, and the grounds on which the application is made (including the reasons why the legal requirements for issuing the warrant are believed to be satisfied). This would ensure that the warrant application fully addresses the matters that, under clause 61(f), must be stated in the warrant once it is issued, namely “the particular activity or activities authorised to be carried out” as well as the criteria that must be considered by the decision-maker(s). This would ensure the Minister, and where relevant the Commissioner, have the level of information necessary to make informed decisions about whether the criteria for issue of the warrant are met and any appropriate conditions and restrictions can be imposed. It would also enhance the after-the-fact oversight of warrants exercised by the Inspector-General of Intelligence and Security.

New clause 53(1)(d) would require the Director-General of an intelligence and security agency to make a statement when applying for a warrant that the facts contained in the application are true and correct.

We also recommend inserting new clause 57(d)(ii) to provide that all reasonably practicable steps be taken to minimise the impact of the proposed activity on any members of the public. This would continue the explicit protections for third parties contained in both the agencies’ current Acts.

Removal of purpose-based warrants

Clause 64 of the bill as introduced would provide that an intelligence warrant may authorise the carrying out of any of the activities listed in clause 64(1)—including surveillance, interception of private communications, search, and seizure—for a specified purpose without the warrant needing to describe the persons in respect of whom, or the places at which, the activities would be undertaken. These purpose-based warrants may only be issued where the objectives cannot be accomplished under a targeted warrant.

We received advice from officials that Type 1 and Type 2 warrants can meet the agencies’ operational needs without the need for purpose-based warrants. The regular warrants also provide more safeguards, greater legal certainty, and more effective oversight. Therefore, we see no operational justification for retaining the provision for purpose-based warrants, and we recommend deleting clause 64.

Collection of information

We recommend deleting clauses 82 and 83 regarding the collection of intelligence, and replacing them with new clause 49A, and new clause 91N in new subpart 3B of Part 4.

In particular, new clause 91N(2)(a) would provide that unauthorised information (information unintentionally collected that is outside the scope of an authorisation or authorised activity) must be destroyed immediately after collection unless an intelligence warrant is promptly issued to authorise collection of the information, or new clause 91P (which relates to incidentally obtained information) applies.

This would ensure that all intelligence collection is properly authorised and that retention of intelligence is also subject to the protections of a warrant, or authorised by new clause 91P.

Destruction of irrelevant information

We recommend inserting new clause 91O to require the destruction of irrelevant information. Subclause (1)(a) and (b) would define irrelevant information as being information that has been legitimately collected but is not, or is no longer, relevant to the agency’s functions. Subclauses (2) and (3) would provide that irrelevant information must be destroyed as soon as practicable, unless a law requires the retention of the information, or a court order has prohibited the destruction of the information.

This would address the lack of a provision in the bill as introduced concerning the treatment of irrelevant information collected under warrant.

Treatment of information under amended or revoked warrant

We recommend deleting clause 76 regarding the amendment and revocation of intelligence warrants, and replacing it with new clause 89A. This new clause would confer discretion on the warrant decision-makers to order the destruction of information obtained under a warrant where that warrant is amended or revoked. In the case of a Type 1 warrant, the decision-making authority rests with the authorising Minister and a Commissioner of Intelligence Warrants, while for a Type 2 warrant the authorising Minister is responsible.

This amendment would address the lack of any discretion in the bill as introduced to order the destruction of information collected pursuant to an amended or revoked warrant.

Databases accessible to intelligence and security agencies

Clause 109 would allow the Governor-General to amend Schedule 2 by Order in Council on the recommendation of the relevant Minister. Schedule 2 lists databases that the intelligence and security agencies may directly access.

The Regulations Review Committee has advised us that clause 109 is a “Henry VIII” power as it authorises delegated legislation to amend, suspend, or override primary legislation. Such a power should only be used in exceptional circumstances and with strict controls. We are concerned that this clause would allow changes to be made to the list of databases without parliamentary oversight of the reasons for any changes. This would result in the loss of public scrutiny over decisions and accountability for them.

For these reasons we recommend deleting clause 109.

Obtaining business records of telecommunications network operators and financial service providers

Part 5 sets out the intelligence and security agencies’ access to information held by other agencies.

We recommend inserting new subpart 4 into Part 5 to provide a new framework for the intelligence and security agencies to access business records held by telecommunications network operators and financial service providers. Business records include information collected and maintained as part of normal business practice, but importantly, not the content of any communications.

This new legal framework seeks to respond to industry concerns, and would be limited to individual requests for specific information rather than bulk or class-based orders. There would be no requirement for firms to collect or retain any information that they do not already collect.

The framework introduces an element of compulsion. It would involve the issue of a standing business records approval by the responsible Minister and a Commissioner of Intelligence Warrants. This would authorise the Director-General of an intelligence and security agency to issue orders for the production (business records directions) of certain business records in specific pre-identified circumstances, and on a case-by-case basis. The new framework would introduce more rigorous control over access to banking and telecommunications business records, as well as greater oversight and transparency.

Clause 118B(1) would define business records as meaning all information in the possession or under the control of the telecommunications network operator, and all information in the possession or under the control of the financial service provider. Certain information (for example, information about the employees and directors of the telecommunications network operator or financial services provider, information relating to their business operations, and the content of telecommunications) would be excluded from the definition of business records. The business records approval would apply only in respect of telecommunications network operators and financial service providers, as defined in specified legislation.2

Clause 118C(3) would provide for the Director-General of an intelligence and security agency to apply for an approval in writing describing the circumstances, the business records that may be sought, the function the agency would be performing, and why obtaining an intelligence warrant would be impractical or inappropriate.

Clause 118E(2) would provide for the responsible Minister and a Commissioner of Intelligence Warrants to authorise the agencies to obtain business records. They must be satisfied that obtaining the records is necessary for the intelligence and security agency to perform a function under clauses 13, 14, or 17 of the bill, that the privacy impact of obtaining the records does not outweigh the importance of performing the function, and that it would not be more appropriate to obtain an intelligence warrant to obtain the business records. Clause 118E(3) specifies that an approval must state the Director-General to whom the approval is granted, the circumstances in which the business records may be obtained, which records or class of records may be obtained, any restrictions or conditions to which the approval is subject, and the date the approval was granted.

Clause 118F would provide for a business records approval to expire six months after it had been granted.

Clause 118G would provide for the responsible Minister and a Commissioner of Intelligence Warrants to amend or revoke an approval at any time, and to direct that all or any specified business records obtained under the approval be destroyed.

Clause 118H(1) would provide that, after being granted an approval, the Director-General of the intelligence and security agency may issue a direction in writing to a named business agency requiring it to provide specified business records, or any specified class of business records, that relate to an identifiable person or thing. Clause 118H(2) would allow a Director-General to issue a direction only in respect of business records obtainable under a current approval, and subject to the circumstances and any restrictions or conditions stated in the approval.

Under clause 118I(1) an agency issued with a direction would be required to comply not later than 30 days, or any later period permitted by the Director-General who issued the request, after receipt of the direction.

Clause 118I(2) provides that a business agency would commit an offence if it failed to comply with a business records direction. Clause 118I(3) sets out the penalty as a term of imprisonment not exceeding one year for an individual, and a fine not exceeding $40,000 for a body corporate. This penalty is similar to that in section 174 of the Search and Surveillance Act 2012 for failure to comply with a production order.

Clause 118K(1) would require the intelligence and security agencies to maintain a register of business records directions issued to telecommunications network operators and financial services providers. Clause 118K(2) lists the details the register must include. Under clause 118K(3) the register may be accessed at any time by the responsible Minister, and the Inspector-General.

Certification by Directors-General as to necessity of information disclosure

We recommend a procedural amendment to clause 101 to allow the Director-General of the relevant intelligence and security agency to certify that disclosure of the information is necessary for the performance of that agency’s statutory functions. This would help the disclosing agency to decide whether the grounds for disclosure in clause 101 are met. The amendment is intended to address concerns about the ability of disclosing agencies to assess whether disclosure is necessary to enable the GCSB or the NZSIS to perform any of its statutory functions. Disclosure under clause 101 would still be voluntary, and there would be no obligation to disclose information where a Director-General has issued such a certificate.

We recommend inserting new clause 101A to require the Directors-General of the intelligence and security agencies to maintain a register of certificates (section 101 certificates) issued by them under section 101(2A). Clause 101A(2) lists the details the register must include for each section 101 certificate issued, and clause 101A(3) provides that the register may be accessed at any time by the responsible Minister and the Inspector-General.

Transfer of adoption information

Adoption information is highly sensitive; it includes the fact that an adoption took place, and information about birth parents, adoptive parents, and the adopted person. Access to this information is subject to strict statutory controls under the Births, Deaths, Marriages and Relationships Registration Act 1995, and the Adoption Act 1955.

While there may be strong intelligence reasons why the security and intelligence agencies need access to adoption information on occasions, this is unlikely to be often enough to justify direct access. The restrictions on the availability of this information are also akin to those applying to information currently included in the restricted information scheme in the bill as introduced. Therefore, we recommend transferring adoption information from the direct access scheme in Schedule 2 to the restricted information scheme in subpart 3 of Part 5 of the bill.

This would allow the agencies to obtain adoption information on a case-by-case basis, but only where they have satisfied the responsible Minister (and a Commissioner of Intelligence Warrants, where applicable) that this is necessary and proportionate. We consider that this would better balance operational needs with the sensitivity of adoption information.

Police-held information to be added to Schedule 2

We recommend that information held by the New Zealand Police about people or locations identified as posing a possible physical threat to GCSB and NZSIS staff should be added to Schedule 2 of the bill and be made accessible to the NZSIS.

We consider that direct access to this information would benefit the safety of field officers. For example, because physical surveillance can involve following a target on the move, NZSIS physical surveillance officers routinely find themselves operating in locations they did not anticipate being in, and that they have no control over. Direct access to this Police-held information would enable agency staff to check in real time whether there is a need to proceed with extra caution, or to request further information or support from the Police.

Police-held financial intelligence to be added to Schedule 2

We recommend that financial intelligence held by the New Zealand Police about people (natural and legal persons) identified as being relevant to national security investigations should be added to Schedule 2 of the bill, and be made accessible by the NZSIS and the GCSB.

The Financial Intelligence Unit of the New Zealand Police holds a database of domestic and international financial intelligence that is used to prevent and detect money laundering and the financing of terrorism. Currently this information can only be provided to the intelligence and security agencies on a case-by-case basis, which is inefficient. We consider that direct access to this information would benefit the agencies’ work to investigate the financing of overseas terrorist organisations from New Zealand, and the identification of financial transactions associated with the activities of foreign intelligence agencies operating in New Zealand. It would also enable better collaboration in identifying and countering the financing of terrorism.

Action following a finding of irregular authorisation

We recommend amending clause 126(1) and inserting new clause 126(3) to provide that the Inspector-General may recommend the destruction of intelligence collected under an authorisation where the authorisation or actions taken have been the subject of a finding of irregularity by the IGIS. It would be open to the Inspector-General to report this finding to the Minister responsible for the intelligence and security agency and the Chief Commissioner of Intelligence Warrants in the case of a Type 1 warrant, and to the Minister responsible for the intelligence and security agency in the case of a Type 2 warrant or any other kind of authorisation. We consider that this would assist the decision-makers to respond to the finding of an irregularity in an authorisation or authorised activities.

More mandatory ministerial policy statements

Part 7 of the bill sets out a framework requiring the Minister responsible for an intelligence and security agency to issue policy statements providing guidance to the agencies on the conduct of their activities. Ministerial policy statements provide clarity, oversight and accountability, transparency, and public confidence and reassurance.

Some of the agencies’ lawful activities involve gathering information about individuals and organisations where a degree of deception or intrusion into someone’s private life is involved. Recognising this, we recommend amending clause 165 to expand the list of matters on which the responsible Minister must issue ministerial policy statements, to include:

  • providing information assurance and cybersecurity activities by consent

  • collecting information lawfully from persons without an intelligence warrant or authorisation

  • conducting surveillance in a public place

  • obtaining and using publicly available information

  • requesting information from agencies under section 100

  • information management (including retention and destruction)

  • making false or misleading representations about being employed with an intelligence and security agency, and

  • conducting activities in accordance with an exemption from the Land Transport (Road User) Rule 2004.

Effect of ministerial policy statement

We also recommend inserting new clause 167A which would require the agencies to have regard to any relevant ministerial policy statements when making decisions and taking any action.

Amendment to privacy principle 10 of Privacy Act 1993

We recommend amending clause 263 of the bill to insert into section 6 of the Privacy Act 1993 a new subclause (2) after principle 10. This new provision would mean that an intelligence and security agency that holds personal information obtained for one purpose may use that information for another, secondary, purpose only if the agency believes on reasonable grounds that this use is necessary to enable it to perform any of its statutory functions. We consider it appropriate that the ability to use information for the purpose of the intelligence and security agencies’ functions be restricted to the intelligence and security agencies, rather than open to any agency as provided for in the bill as introduced.

Green Party of Aotearoa New Zealand minority view

The Green Party welcomes the improvements in the final draft of the New Zealand Intelligence and Security Bill, in particular the following:

  • Political neutrality: a stronger obligation on the agency heads (a “specific duty”) to ensure that agency activities will not promote or harm the interests of any political party or candidate.

  • Foreign agencies: a new assurance that cooperation with foreign jurisdictions will be in accordance with New Zealand law and human rights obligations.

  • Freedom of expression: a clear assurance that lawful acts of advocacy, protest, or dissent are secure from intelligence activity.

  • Registers: a register of assumed identities and legal entities.

  • Issue of warrants: “due particularity” in applications and additional criteria for the issue of warrants.

  • National security: a “closed list” of elements related to national security.

  • Triple-Lock: the requirement for a Type 1 warrant to be jointly authorised by the Minister and the Chief Commissioner, with review by the Inspector-General.

  • Purpose-based warrants: such warrants now removed.

  • Destruction of unauthorised information.

  • Deletion of the provision for retention of “incidentally-obtained intelligence”.

  • Destruction of “irrelevant information”.

  • Database accessibility: deletion of ministerial empowerment to amend, suspend, or override primary legislation.

The Green Party also acknowledges the increased professionalism and integrity of the New Zealand intelligence services in recent years. It views this, however, as a rectification of unacceptable shortcomings, not as a justification for new intrusive powers by the State.

Notwithstanding the legislative improvements identified above, the Green Party continues to oppose the bill because it believes the underlying political judgement on which the bill rests is flawed. The bill rests on an erroneous view of counter-terrorism policy.

The stated purpose of the bill is to protect New Zealand as a “free, open and democratic society”. To that end, it gives our intelligence agencies “adequate and appropriate powers” to contribute to (i) the protection of national security; (ii) international relations and “wellbeing”; and (iii) “economic well-being”. This is to be done with due regard to New Zealand law, integrity and professionalism, and democratic oversight.

In order to do that, however, the bill enhances the espionage capacity of the State, with the effect of eroding the freedom and openness of society, in the name of security.

It is acknowledged by both those for and against the bill that intrusive powers of espionage by the State axiomatically erode individual human rights. The argument for greater intrusive powers, advanced in the Cullen-Reddy report and ministerial speeches, is that a balance between national security and individual rights needs to be struck. In today’s world of terrorism and “radical extremism”, it is argued, the responsibility of the State to undertake espionage on its own citizens as well as foreigners has increased, and that this unavoidably alters the balance. This justifies a single legislative framework in the interests of “efficiency”, and expanded intrusive powers in the interests of “effectiveness”.

The Explanatory Note does not elaborate upon the bill’s purpose, but senior Ministers have done so. The former Prime Minister stated (August 2016) that

“… it is vital our agencies operate under legislation which enables them to be effective in an increasingly complex security environment, where we are confronted by growing numbers of cyber-threats and the rise of terrorist groups such as ISIL.”

The Foreign Minister advised the UN Security Council (May 2016) that

“New Zealand once regarded itself as largely removed from the threat of international terrorism, protected by its geography. Sadly, we now live in a world where terrorism is a global enterprise, exported through modern technology and sophisticated social media. Every society has its element of disenchanted and disenfranchised who provide a ready market for extremist ideology. Every society has its element of disturbed or criminal individuals who find international terrorist branding a convenient cloak.”

As a result of these political perceptions, the National Terrorist Threat Assessment was raised in 2014 from Very Low (unlikely) to Low (possible but not expected). This, the Government concludes, justifies a single legislative framework, more intrusive State powers, and this bill.

The Green Party views it differently. It does not agree that a threat that is not expected to occur justifies these changes. Terrorism is but one of seven “harms” associated with national security, most of which are not germane to that threat assessment. The Green Party views terrorism as a criminal offence rather than a national security threat. It regards national security as a political goal, not an inherent individual right.

The Foreign Minister stated that

“the most important contribution the Security Council can make to combat terrorism is to improve its capacity to prevent and resolve conflict. Unresolved conflicts in Syria and Iraq are fertile breeding grounds for terrorism and extremist ideology—a phenomenon we have already witnessed in Afghanistan and elsewhere. The unresolved conflict in Palestine has now fuelled generations of hopelessness and extremism. So my first message is that the council must face up to its core business of preventing and resolving conflicts if it wants to eliminate the conditions under which extremist narratives and ideologies will breed and spread.”

The Green Party agrees, but believes that the same judgement applies to New Zealand, which does not do enough in assisting the international community to reduce the causes of conflict and terrorism, compared with adopting response measures of which this bill is one.

Statement of purpose: While there is now greater precision pertaining to national security in the bill, the other purposes remain vague, legally undefined, and politically unfocused. New Zealand’s “well-being” is not defined in the bill and can mean virtually anything. Adding a subset of that (“economic well-being”) as a separate and discrete purpose is conceptually confusing.

Cooperation with foreign intelligence agencies: The balance of information and opinion advanced in the select committee hearings confirms the Green Party’s view that the bill would be detrimental to the national interest. It would undermine New Zealand’s domestic integrity and diminish its international reputation. Close cooperation with foreign intelligence agencies such as those operating under current US policy will prove highly problematic, if not impossible, to meet the standards of “integrity and professionalism” and respect for human rights law established in the bill. How are the New Zealand intelligence and security agency heads to collaborate with the Five Eyes over the US presidential travel ban against Muslims, thereby discriminating against persons on the basis of religion?

While terrorism has become a fact of contemporary global life, its perception is distorted among Western governments. Most terrorist acts occur in non-Western countries. The phenomenon of terrorism in Western countries is correlated with the extent of their engagement in military action in crisis situations that lack a clear UN mandate.

Appendix

Committee process

The New Zealand Intelligence and Security Bill was referred to the committee on 18 August 2016. The closing date for submissions was 7 October 2016. We received and considered 51 submissions from interested groups and individuals. We heard oral evidence from 32 submitters.

We received advice from the Department of the Prime Minister and Cabinet. We also heard evidence from Sir Bruce Robertson, Commissioner of Security Warrants. The Regulations Review Committee reported to us on the powers contained in clause 109 of the bill.

Committee membership

Todd Muller (Chairperson)

Hon David Cunliffe (from 8 February 2017)

Hon Jacqui Dean (from 8 February 2017)

Hon Jo Goodhew (from 8 February 2017)

Dr Kennedy Graham

Hon David Parker

Dr Shane Reti

Jami-Lee Ross

Fletcher Tabuteau

Lindsay Tisch

Hon Mark Mitchell (until 27 January 2017)

David Shearer (until 31 December 2016)

Hon David Bennett (until 8 February 2017)

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Rt Hon Bill English

New Zealand Intelligence and Security Bill

Government Bill

158—2

Contents

Commentary
Key
1Title
2Commencement
3Purpose
4Interpretation
5Meaning of national security
6Meaning of sensitive information
7Transitional, savings, and related provisions
8Act binds the Crown
9New Zealand Security Intelligence Service
10Government Communications Security Bureau
11Objectives of intelligence and security agencies
12Principles underpinning performance of functions
13Intelligence collection and analysis
14Protective security services, advice, and assistance
15Information assurance and cybersecurity activities
15Information assurance and cybersecurity activities
16Co-operation with other entities public authorities to facilitate their functions
17Co-operation with other entities to respond to imminent threat
18Additional functions
19Functions of intelligence and security agencies do not include enforcement
19AGeneral duties applying when intelligence and security agency performing functions
20Activities of agencies must be relevant to functions
21Activities of intelligence and security agencies must be politically neutral
22Limitation on collecting intelligence within New Zealand
20Specific duties of Director-General of an intelligence and security agency
22Activities of intelligence and security agency not to limit freedom of expression
23Director-General of an intelligence and security agency to consult Leader of the Opposition
24Purpose of subpart
25Interpretation
26Assumed identity may be acquired, used, and maintained
27Use of assumed identity
28Request for assistance to acquire, use, and maintain assumed identity
29Assistance to acquire, use, and maintain assumed identity
30Cancellation of evidence of assumed identity
30AProvisions do not require destruction of certain information
31Non-compliance with enactments, policies, and practices
32Restrictions on access to information about process for obtaining assistance, etc
33Immunity of persons assisting and of employee of agency in making false documents
34Immunity of authorised persons
35Purpose of subpart
36Interpretation
37Request for corporate identity, status, etc
38Conferring corporate identity, status, etc
39Maintaining corporate identity and status
40Dissolution or deregistration, etc, of entity
40AProvisions do not require destruction of certain information
41Non-compliance with enactments, policies, and practices
42Restrictions on access to information about process for obtaining assistance, etc
43Entity or officer exempt from complying with legal requirements, etc
44Immunity of persons complying with request or direction
45Immunity of entity
45ARegister of assumed identities and legal entities created or maintained
46Purpose of Part
47Interpretation
48Authorisation not required to carry out lawful activity
49Authorisation required to carry out otherwise unlawful activity
49ADuty to act only as authorised
49BRequest for assistance to give effect to authorisations
50Types of intelligence warrant
51Type 1 intelligence warrant
52Type 2 intelligence warrant
53Application for intelligence warrant
53Application for issue of intelligence warrant
54Joint application for intelligence warrant
55Issue of Type 1 intelligence warrant
55AIssue of Type 1 intelligence warrant to contribute to protection of national security
55BIssue of Type 1 intelligence warrant to contribute to New Zealand’s international relations or economic well-being
56Issue of Type 2 intelligence warrant
57Additional criteria for issue of intelligence warrant
58Minister of Foreign Affairs to be consulted in certain cases
59Issue of joint intelligence warrant
59AMinister of Foreign Affairs to be consulted in relation to issue of intelligence warrants in certain cases
60Intelligence warrants may be issued subject to restrictions or conditions
60ATerm of intelligence warrant
61Matters required to be stated in intelligence warrant
62Term of intelligence warrant
63Authorised activities
64Authorised activities under purpose-based warrant
65Powers of New Zealand Security Intelligence Service acting under intelligence warrant
66Powers of Government Communications Security Bureau under intelligence warrant
67Privileged communications or privileged information
68Request for assistance to give effect to intelligence warrant
69Urgent issue of Type 1 intelligence warrant
70Urgent issue of Type 2 intelligence warrant
71Reasons for urgent issue of intelligence warrant to be recorded
72Intelligence warrant issued under section 69 revoked unless confirmed
73An Intelligence warrant issued under section 70 revoked unless confirmed
74Information to be destroyed if intelligence warrant issued under section 69 or 70 revoked
75Intelligence warrants issued under section 69 or 70 to be referred to Inspector-General
76Amendment and revocation of intelligence warrants
77Very urgent authorisations by Director-General of intelligence and security agency
78Authorisation given under section 77(2)(a) effective as Type 1 intelligence warrant
79Authorisation given under section 77(2)(b) effective as Type 2 intelligence warrant
80Information to be destroyed if authorisation given under section 77 revoked
81Authorisations given under section 77 to be referred to Inspector-General
82Duty to collect intelligence only within scope of authorised activity
83Collection of unauthorised intelligence
84Failure to destroy information
85Unlawful use or disclosure of information
86Unlawful disclosure of acquired information
87Immunities from criminal liability in relation to obtaining intelligence warrant
88Immunities from criminal liability in relation to carrying out authorised activity
89Register of intelligence warrants
89AAmendment and revocation of intelligence warrants
90Issue of removal warrant to retrieve previously installed devices
90AMinister of Foreign Affairs to be consulted in relation to issue of removal warrants in certain cases
90BPowers of New Zealand Security Intelligence Service acting under removal warrant
91Retention of incidentally-obtained intelligence
91Types of practice warrant
91ATesting warrant
91BTraining warrant
91CApplication for issue of practice warrant
91DCriteria for issue of practice warrant
91EIssue of practice warrant
91FMinister of Foreign Affairs to be consulted in relation to issue of practice warrants in certain cases
91GPractice warrants may be issued subject to restrictions or conditions
91HTerm of practice warrant
91IMatters to be stated in practice warrant
91JAuthorised activities
91KPowers of New Zealand Security Intelligence Service acting under practice warrant
91LPowers of Government Communications Security Bureau acting under practice warrant
91MReport on practice warrant activities
91NDestruction of unauthorised information
91ODestruction of irrelevant information
91PRetention of incidentally obtained information
91QPhysical items seized to be returned after search or analysis
91ROffence to provide false or misleading information
91SFailure to destroy information
91TUnlawful use or disclosure of information
91UUnlawful disclosure of acquired information
91VImmunities from criminal liability in relation to obtaining intelligence warrant
91WImmunities from criminal liability in relation to carrying out authorised activity
92Appointment of Commissioners
93Eligibility for appointment
94Functions of Commissioners
95Additional functions of Chief Commissioner of Intelligence Warrants
95ADelegation of functions of Chief Commissioner of Intelligence Warrants
96Administrative provisions relating to Commissioners
97Interpretation
98Relationship between this Part and other law relating to information disclosure
99Purpose of subpart
100Requests for information
101Disclosure of information to intelligence and security agency
101ARegister of section 101 certificates
102Purpose of subpart
103Direct access to certain information
104Matters to which Ministers must have regard before entering into direct access agreement
105Consultation on direct access agreement
105Consultation with Privacy Commissioner before entering into direct access agreement
105AConsultation with Inspector-General before entering into direct access agreement
106Content of direct access agreements
106AVariation of direct access agreement
107Publication of direct access agreements
108Review of agreements
109Amendment of Schedule 2
109ARelationship between subpart and other law
110Purpose of subpart
111Meaning of restricted information
112Application for permission to access restricted information
113Permission to access restricted information granted on application made under section 112(2)(a)
114Permission to access restricted information granted on application made under section 112(2)(b)
115Further criteria for permitting access to restricted information
116Permission must specify restricted information that may be accessed
117Access to restricted information must be provided if permitted
118Use, retention, and disclosure of restricted information
118APurpose of subpart
118BInterpretation
118CApplication for approval to obtain business records
118DJoint application for approval
118EApproval to obtain business records
118FDuration of approval
118GAmendment and revocation of approvals
118HDirector-General of intelligence and security agency may issue business records direction
118ICompliance with business records direction
118JBusiness records to be destroyed if not required by intelligence and security agency
118KRegister of business records directions
118LSubpart does not create any new obligation to create or maintain records
118MRelationship between subpart and other law
119Purpose of Part
120Appointment of Inspector-General
121Functions of Inspector-General
122Inspector-General to prepare and publish annual work programme
123Disclosures to Inspector-General or Deputy Inspector-General
124Consultation by Inspector-General
125Jurisdiction of courts and other agencies not affected
126Reviews relating to authorisations
126Reviews relating to authorisations and authorised activities
127Appointment of Deputy Inspector-General
128Functions, duties, and powers of Deputy Inspector-General
129Administrative provisions relating to offices of Inspector-General and Deputy Inspector-General
130Advisory panel
131Functions of advisory panel
132Membership of advisory panel
133Administrative provisions relating to advisory panel
134Complaints that may be made to Inspector-General
135Form of complaint
136Procedure on receipt of complaint
137Inspector-General may decide not to inquire or continue to inquire into complaint
138Commencing of inquiry
139Evidence
140Evidence of breach of duty or misconduct by employee of intelligence and security agency
141Power to summon persons
142Power to require information and documents
143Disclosure of information may be required despite obligation of secrecy
144Protection and privileges of witnesses
145Information disclosed to Inspector-General privileged
145AInspector-General, etc, not compellable witnesses
146Power of entry
147Inspector-General to prepare report on completion of inquiry
148Advice on compliance with Inspector-General’s recommendations
149Minister to respond to Inspector-General’s report
150Publication of Inspector-General’s report
151Return of documents, etc, after inquiry
152Proceedings not to be questioned or reviewed
153Offence to publish information relating to inquiry
154Intelligence and Security Committee
155Functions of Committee
156Membership of Committee
157Filling vacancy in membership of Committee
158Endorsement of nominated members
159Committee not to transact business until nominated members endorsed
160Chairperson of Committee
160APrivilege
161Administrative provisions relating to Committee
162Attendance before Committee
162AMeaning of sensitive information
163Provision of information to Committee
164Information Secrecy of information disclosed to Committee privileged
164ACommittee’s records may be copied to House of Representatives
165Issue of ministerial policy statements relating to covert activities
166Issue of ministerial policy statements relating to co-operating, etc, with overseas public authorities
167Issue of additional ministerial policy statements
167AEffect of ministerial policy statement
168Content of ministerial policy statements
169Consultation on proposed ministerial policy statements
170Amending, revoking, or replacing ministerial policy statements
171Ministerial policy statements applying to both intelligence and security agencies
172Duration of ministerial policy statement
173Publication of ministerial policy statements
174Status of ministerial policy statements
175Powers in relation to security records
176Disclosure of information relating to activities of intelligence and security agency
177Duty of confidentiality
178Use of information provided for security clearance assessment
179Annual reports of intelligence and security agencies
180Annual report of Inspector-General
181Annual report of Intelligence and Security Committee
182Restrictions on reports to House of Representatives
183Obstructing, hindering, resisting, or deceiving Inspector-General
184Personation
185Restriction on publication and broadcasting of information regarding employees
186Employee may make false or misleading representations about employment
187Protections relating to representations about identity
188Exception from criminal liability under section 246 of Crimes Act 1961 in certain circumstances
189Exceptions to Land Transport (Road User) Rule 2004
190Burden of proof to establish immunity and relationships between immunities
191Functions of Chief Executive of DPMC in relation to intelligence and assessments
192Duty to act independently
193Requirement to hold periodic reviews
194Appointment of reviewers and related matters
195Provision of information
196Report of reviewers
197Remuneration of reviewers
198Provision of administrative and other support
199Reviewers to determine own procedure
200Repeals
200AAmendments to Biosecurity Act 1993
200BSection 142I amended (Disclosure of personal information in New Zealand)
201Amendments to Births, Deaths, Marriages, and Relationships Registration Act 1995
202Section 2 amended (Interpretation)
203Section 65 amended (Request for new identity information for certain witnesses, etc)
204Section 75F amended (Searches for certain authorised purposes)
205Section 78 amended (Restrictions on searches relating to new names of certain witnesses, etc)
205AAmendments to Corrections Act 2004
205BSection 3 amended (Interpretation)
205CSection 117 amended (Authorised disclosure of information)
206Amendments to Crimes Act 1961
207New section 78AA inserted (Wrongful communication, retention, or copying of classified information)
78AAWrongful communication, retention, or copying of classified information
208Section 78B amended (Consent of Attorney-General to proceedings in relation to espionage or wrongful communication, retention, or copying of official information)
208AAmendments to Customs and Excise Act 1996
208BSection 280M replaced (Direct access to database information for counter-terrorism investigation purposes)
280MDirect access to database information for purposes of counter-terrorism and national security
208CNew section 293A inserted (Saving of agreements made under section 280M before commencement of section 208B of Intelligence and Security Act 2016)
293ASaving of agreements made under section 280M before commencement of section 208B of Intelligence and Security Act 2016
209Amendment to Education Act 1989
210Section 346 amended (Offences)
211Amendment to Electronic Identity Verification Act 2012
212Section 12 amended (Exception to section 11 for certain individuals with new identity information)
213Amendment to Employment Relations Act 2000
214New section 172A inserted (Reports from Inspector-General of Intelligence and Security)
172AReports from Inspector-General of Intelligence and Security
215Amendments to Immigration Act 2009
216Section 3 amended (Purpose)
217Section 4 amended (Interpretation)
218Section 9A amended (Meaning of mass arrival group)
219Section 29 amended (Automated decision making in advance passenger processing)
220Section 96 replaced (Responsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand)
96Carrier, and person in charge, of commercial craft to provide advance passenger processing information before departure
221Section 97 amended (Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand)
222New section 97A inserted (Chief executive may make decision about person boarding commercial craft for purpose of travelling from New Zealand)
97AChief executive may make decision about person boarding commercial craft for purpose of travelling from New Zealand
223Section 101 amended (Obligations in relation to craft en route to or arriving in New Zealand)
224Section 102 amended (Obligations of carriers, and persons in charge, of craft to provide information)
225Section 303 amended (Disclosure of information to enable specified agencies to check identity and character)
226New sections 303A to 303C inserted
303ADisclosure of information to specified agencies for purposes of law enforcement, counter-terrorism, and security
303BDirect access to information for purposes of law enforcement, counter-terrorism, and security
303CRequirements for agreements entered into under section 303, 303A, or 303B
227Section 349 amended (Offences relating to carriers, and persons in charge, of craft)
228Section 366 amended (Evidence in proceedings: certificates in relation to persons)
229Section 402 amended (Regulations relating to procedures and requirements in relation to arrivals in and departures from New Zealand)
230Amendments to Land Transport Act 1998
231Section 24A replaced (Authorised persons may request driver licences for certain persons)
232Section 200 amended (Restrictions on access to photographic images of driver licence holders)
233Amendments to Passports Act 1992
234Section 2 amended (Interpretation)
235Section 4 amended (Issue of passport)
236Section 4A repealed (Refusal to issue passport on grounds of national security)
237Section 8A repealed (Cancellation of passport on grounds of national security)
238Section 9 amended (Cancellation of passport on other grounds)
239Section 11 amended (Delivery of recalled passport)
240Section 11A amended (Warnings on New Zealand travel document database)
241Section 20 amended (Cancellation of certificate of identity)
242Section 20A repealed (Cancellation of certificate of identity on grounds of national security)
243Section 22 amended (Delivery of recalled certificate of identity)
244Section 23 amended (Issue of emergency travel document)
245Section 25 amended (Cancellation of emergency travel document)
246Section 25A repealed (Cancellation of emergency travel document on grounds of national security)
247Section 27 amended (Delivery of recalled emergency travel document)
248Section 27A amended (Issue of refugee travel document)
249Section 27B repealed (Refusal to issue refugee travel document on grounds of national security)
250Section 27D amended (Cancellation of refugee travel document)
251Section 27E repealed (Cancellation of refugee travel document on grounds of national security)
252Section 27G amended (Delivery of recalled refugee travel document)
253New sections 27GA to 27GF and cross-heading inserted
27GARefusal to issue, or cancellation or retention of, New Zealand travel document on grounds of national or international security
27GBChief Commissioner of Intelligence Warrants to be notified of action taken under section 27GA
27GCPerson to be notified of action taken under section 27GA
27GDPerson not entitled to obtain New Zealand travel document if action taken under section 27GA
27GETemporary suspension of New Zealand travel documents pending decision under section 27GA
27GFReview of Minister’s decision under section 27GA
254Section 27I amended (Electronic cancellation of New Zealand travel documents)
255Section 28 amended (Appeal to High Court)
256Section 29 amended (Appeal to Court of Appeal in certain cases)
257Cross-heading above section 29AA replaced
258Section 29AA amended (Proceedings where national security involved)
259Section 29AB amended (Proceedings involving classified security information)
260New section 37B inserted (Crown liability)
37BCrown liability
261Section 46 repealed (Transitional provision)
262Amendments to Privacy Act 1993
262ASection 2 amended (Interpretation)
263Section 6 amended (Information privacy principles)
264Section 57 replaced (Intelligence organisations)
57Exemption for intelligence organisations and security agencies
264ACross-heading above section 81 amended
264BSection 81 replaced (Special procedure relating to intelligence organisations)
81Special procedure relating to intelligence and security agencies
265Amendments to Protected Disclosures Act 2000
266Section 3 amended (Interpretation)
267Sections 12 and 13 replaced
12Special rules on procedures of organisations relating to intelligence and security matters
13Special rules on procedures of certain organisations relating to international relations
268Amendments to Public Finance Act 1989
269Section 2 amended (Interpretation)
270Section 15A amended (Main Appropriation Bill: supporting information relating to appropriations)
271Section 45E amended (Application of this Part to intelligence and security departments)
271AAmendment to Remuneration Authority Act 1977
271BSchedule 4 amended
272Amendments to Search and Surveillance Act 2012
273Subpart 8 heading in Part 2 amended
274Section 25 amended (Warrantless searches if offence against section 78 of Crimes Act 1961 suspected)
275Amendments to State Sector Act 1988
276Section 44 amended (Special provisions in relation to certain chief executives)
277Schedule 1 amended
278Amendment to Tax Administration Act 1994
279Section 81 amended (Officers to maintain secrecy)
280Consequential amendments
Legislative history

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the New Zealand Intelligence and Security Act 2016.

2 Commencement

(1)

The following provisions come into force on the day after the date of Royal assent:

(a)

subpart 2 of Part 5:

(ab)

sections 130 to 133:

(ac)

section 200(1):

(ad)

sections 208A to 208C:

(b)

Schedule 2:

(c)

the amendments in Schedule 4 relating to the Customs and Excise Act 1996.

(c)

Part 3 of Schedule 3.

(2)

The following provisions come into force on 1 April 2017:

(a)

subpart 4 of Part 4:

(b)

clauses sections 233 to 261:

(c)

Part 1 of Schedule 3.

(3)

The rest of this Act comes into force on the day that is 6 months after the date of Royal assent.

Part 1 Preliminary provisions

3 Purpose

The purpose of this Act is to protect New Zealand as a free, open, and democratic society by—

(a)

establishing intelligence and security agencies that will effectively contribute to—

(i)

the protection of New Zealand’s national security; and

(ii)

the international relations and well-being of New Zealand; and

(iii)

the economic well-being of New Zealand; and

(b)

giving the intelligence and security agencies adequate and appropriate functions, powers, and duties; and

(c)

ensuring that the functions of the intelligence and security agencies are performed—

(i)

in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and

(ii)

with integrity and professionalism; and

(iii)

in a manner that facilitates effective democratic oversight; and

(d)

ensuring that the powers of the intelligence and security agencies are subject to institutional oversight and appropriate safeguards.

4 Interpretation

In this Act, unless the context otherwise requires,—

advisory panel means the advisory panel continued by section 130

Auditor-General means the Controller and Auditor-General appointed under section 7 of the Public Audit Act 2001

Chief Commissioner of Intelligence Warrants means the Chief Commissioner of Intelligence Warrants appointed under section 92(2)

Commissioner of Intelligence Warrants means a Commissioner of Intelligence Warrants appointed under section 92(1)

department

(a)

means a department specified in Schedule 1 of the State Sector Act 1988; and

(b)

includes a departmental agency as defined in section 27A of the State Sector Act 1988

designated terrorist entity has the meaning given to it by section 4(1) of the Terrorism Suppression Act 2002

Deputy Inspector-General means the Deputy Inspector-General of Intelligence and Security appointed under section 127

designated terrorist entity has the meaning given to it by section 4(1) of the Terrorism Suppression Act 2002

Director-General of an intelligence and security agency means—

(a)

the Director-General of Security:

(b)

the Director-General of the Government Communications Security Bureau

Director-General of Security means the chief executive of the New Zealand Security Intelligence Service

Director-General of the Government Communications Security Bureau means the chief executive of the Government Communications Security Bureau

employee, in relation to an intelligence and security agency, means a person employed in any capacity in that agency

entity has the meaning given to it by section 36

financial year means a period of 12 months commencing on 1 July and ending with 30 June

foreign organisation means—

(a)

a Government of any jurisdiction other than New Zealand:

(b)

an entity controlled by the Government of any jurisdiction other than New Zealand:

(c)

a body corporate that is incorporated outside New Zealand, or any company within the meaning of the Companies Act 1993 that is, for the purposes of the Companies Act 1993, a subsidiary of any body corporate incorporated outside New Zealand:

(d)

an unincorporated body of persons—

(i)

that is not a body 50% or more of whose members are New Zealand citizens or permanent residents of New Zealand; and

(ii)

that carries on activities wholly or in part outside New Zealand:

(e)

an international organisation

foreign person means a person who is not—

(a)

a New Zealand citizen; or

(b)

a permanent resident of New Zealand

foreign public agency means any person or body, wherever situated, that performs any public function, duty, or power conferred on that person or body by or under the laws of a foreign country

Government Communications Security Bureau means the Government Communications Security Bureau continued by section 10

human intelligence activities means activities that involve the use of any person to gather intelligence

Human Rights Commissioners means the members of the Human Rights Commission that is continued by section 4 of the Human Rights Act 1993

Independent Police Conduct Authority means the Authority established under section 4 of the Independent Police Conduct Authority Act 1988

information assurance and cybersecurity activities means activities that are taken carried out proactively or reactively to ensure the availability, confidentiality, and integrity of communications and information infrastructures

information infrastructure includes electromagnetic emissions, communications systems and networks, information technology systems and networks, and any communications carried on, contained in, or relating to those emissions, systems, or networks

Inspector-General of Intelligence and Security or Inspector-General means the Inspector-General of Intelligence and Security holding office under section 120

intelligence and security agency means—

(a)

the New Zealand Security Intelligence Service:

(b)

the Government Communications Security Bureau

Intelligence and Security Committee or Committee means the Intelligence and Security Committee continued by section 154

intelligence warrant has the meaning given to it by section 47

ministerial policy statement means a ministerial policy statement issued under section 165, 166, or 167, and includes any amendments made to a statement under section 170

national security has the meaning given to it by section 5

New Zealand citizen means a person who has New Zealand citizenship as provided in—

(a)

the Citizenship Act 1977; or

(b)

the Citizenship (Western Samoa) Act 1982

New Zealand person

(a)

means any person being—

(i)

a New Zealand citizen; or

(ii)

a person ordinarily resident in New Zealand; or

(iii)

an unincorporated body of persons, being a body of which more than 50% of the members are New Zealand persons under subparagraph (i) or (ii); or

(iv)

a body corporate that is incorporated in New Zealand; but

(b)

does not include—

(i)

any company within the meaning of the Companies Act 1993 that is, for the purposes of that Act, a subsidiary of any body corporate incorporated outside New Zealand; or

(ii)

any company within the meaning of the Companies Act 1993, or building society, in which—

(A)

25% or more of any class of shares is held by any overseas person or overseas persons; or

(B)

the right to exercise or control the exercise of 25% or more of the voting power at any meeting of the company or building society is held by any overseas person or overseas persons; or

(iii)

a person acting in his or her capacity as a nominee of an overseas person, whether or not that person is also an overseas person

New Zealand Security Intelligence Service means the New Zealand Security Intelligence Service continued by section 9

official information has the meaning given to it by section 2(1) of the Official Information Act 1982, and includes security records

Ombudsman means an Ombudsman appointed under the Ombudsmen Act 1975

overseas person has the meaning given to it by section 7 of the Overseas Investment Act 2005

permanent resident of New Zealand means a person who is the holder, or is deemed to be the holder, of a permanent resident visa under the Immigration Act 2009

Privacy Commissioner means the Privacy Commissioner appointed under section 12 of the Privacy Act 1993

public authority means a person or body that performs any public function, duty, or power conferred on that person or body by or under the law, and includes

(a)

an organisation named in

(i)

Schedule 1 of the Ombudsmen Act 1975; and

(ii)

Schedule 1 of the Official Information Act 1982; and

(b)

a local authority or public body named or specified in Schedule 1 of the Local Government Official Information and Meetings Act 1987; and

(c)

a foreign public agency

security records

(a)

means papers, documents, and records of any kind, and whether bearing a security classification or not, that are officially made or received—

(i)

by an intelligence and security agency in the conduct of its affairs; or

(ii)

by any employee of an intelligence and security agency in the course of that employee’s official duties; and

(b)

includes registers, books, maps, plans, drawings, photographs, cinematographic films, sound recordings, and electronic storage media made or received by an agency or employee of the kind described in paragraph (a); and

(c)

includes copies of papers, documents, records, and other things that are security records by virtue of paragraph (a) or (b)

sensitive information has the meaning given to it by section 6

signals intelligence means intelligence gathered or derived from communications and information infrastructures

State Services Commissioner means the State Services Commissioner appointed under section 3 of the State Sector Act 1988

Type 1 intelligence warrant has the meaning given to it by section 47

Type 2 intelligence warrant has the meaning given to it by section 47.

5 Meaning of national security

In this Act, national security means the protection against

(a)

threats, or potential threats, to New Zealand’s status as a free and democratic society from unlawful acts or foreign interference:

(b)

imminent threats to the life and safety of New Zealanders overseas:

(c)

threats, or potential threats, that may cause serious harm to the safety or quality of life of the New Zealand population:

(d)

unlawful acts, or acts of foreign interference, that may cause serious damage to New Zealand’s economic security or international relations:

(e)

threats, or potential threats, to the integrity of information or infrastructure of critical importance to New Zealand:

(f)

threats, or potential threats, that may cause serious harm to the safety of a population of another country as a result of unlawful acts by a New Zealander that are ideologically, religiously, or politically motivated:

(g)

threats, or potential threats, to international security.

6 Meaning of sensitive information

(1)

In this Act, unless the context otherwise requires, sensitive information means information of a kind specified in subsection (2) that, if disclosed, would be likely to

(a)

prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(b)

prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by

(i)

the Government of any other country or any agency of such a Government; or

(ii)

any international organisation; or

(c)

prejudice the maintenance of the law, including the prevention, investigation, and detection of offences and the right to a fair trial; or

(d)

endanger the safety of any person.

(2)

The kinds of information are as follows:

(a)

information that might lead to the identification of, or provide details of,

(i)

sources of information available to an intelligence and security agency; or

(ii)

other assistance or operational methods available to an intelligence and security agency; and

(b)

information about particular operations that have been undertaken, or are being or are proposed to be undertaken, in carrying out of any of the functions of an intelligence and security agency; and

(c)

information that has been provided to an intelligence and security agency by another department or agency of the Government of New Zealand and is information that cannot be disclosed by the intelligence and security agency without the consent of the department or agency of the Government of New Zealand by which that information has been provided; and

(d)

information that has been provided to an intelligence and security agency by the Government of any other country or by an agency of such a Government and is information that cannot be disclosed by the intelligence and security agency without the consent of the Government or agency by which that information has been provided.

7 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

8 Act binds the Crown

This Act binds the Crown.

Part 2 Intelligence and security agencies

9 New Zealand Security Intelligence Service

(1)

There continues to be a New Zealand Security Intelligence Service that specialises in human intelligence activities.

(2)

The New Zealand Security Intelligence Service is the same body as the body of that name existing immediately before the commencement of this section.

(3)

The New Zealand Security Intelligence Service is a department of State.

Compare: 1969 No 24 s 3

10 Government Communications Security Bureau

(1)

There continues to be a department of State called the Government Communications Security Bureau that specialises in signals intelligence and information assurance and cybersecurity activities.

(2)

The Government Communications Security Bureau is the same body as the body of that name existing immediately before the commencement of this section.

Compare: 2003 No 9 s 6

Objectives

11 Objectives of intelligence and security agencies

The principal objectives of the intelligence and security agencies are to contribute to—

(a)

the protection of New Zealand’s national security; and

(b)

the international relations and well-being of New Zealand; and

(c)

the economic well-being of New Zealand.

Compare: 1969 No 24 s 4AAA(1)(a), (b); 2003 No 9 s 7

Functions

12 Principles underpinning performance of functions

(1)

When performing its functions, an intelligence and security agency must act

(a)

in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and

(b)

in the performance of its operational functions, independently and impartially; and

(c)

with integrity and professionalism; and

(d)

in a manner that facilitates effective democratic oversight.

(2)

Subsection (1) does not impose particular duties on, or give particular powers to,

(a)

an intelligence and security agency; or

(b)

the Director-General of an intelligence and security agency; or

(c)

an employee of an intelligence and security agency.

(3)

Despite subsection (2)(b), the Director-General of an intelligence and security agency must take all reasonable steps to ensure that any co-operation with foreign jurisdictions and international organisations in the performance of any function is consistent with subsection (1)(a).

Compare: 1969 No 24 s 4AAA(1)(c), (2); 2003 No 9 s 8D(1), (2)

13 Intelligence collection and analysis

(1)

It is a function of an intelligence and security agency to—

(a)

collect and analyse intelligence in accordance with the Government’s priorities; and

(b)

provide any intelligence collected and any analysis of that intelligence to 1 or more of the following:

(i)

the Minister:

(ii)

the Chief Executive of the Department of the Prime Minister and Cabinet:

(iii)

any person or class of persons (whether in New Zealand or overseas) authorised by the Minister in accordance with subsection (3) to receive the intelligence.

(2)

In performing the function referred to in subsection (1)(a), an intelligence and security agency may co-operate with, and provide advice and assistance to,—

(a)

any public authority (whether in New Zealand or overseas); and

(b)

any other entity person or class of persons (whether in New Zealand or overseas) authorised by the Minister for the purposes of this subsection under subsection (1)(b)(iii).

(3)

Before authorising, under subsection (1)(b)(iii), the provision of intelligence to any overseas person or class of persons, the Minister must be satisfied that, in providing the intelligence, the intelligence and security agency will be acting in accordance with section 12(1)(a) when providing that intelligence New Zealand law and all human rights obligations recognised by New Zealand law.

(4)

In this section, Minister, in relation to an intelligence and security agency, means the Minister responsible for the intelligence and security agency.

Compare: 2003 No 9 s 8B

14 Protective security services, advice, and assistance

(1)

It is a function of an intelligence and security agency to provide protective security services, advice, and assistance to—

(a)

any public authorities authority (whether in New Zealand or overseas); and

(b)

any person or class of persons (whether in New Zealand or overseas) authorised by the Minister responsible for the intelligence and security agency to receive the services, advice, and assistance.

(1A)

An intelligence and security agency may provide protective security services, advice, and assistance to any public authority or person or class of persons under subsection (1) in co-operation with any other such public authority or person or class of persons.

(2)

In this section, protective security services, advice, and assistance means—

(a)

services and advice relating to developing and implementing protective security arrangements, including arrangements for—

(i)

personnel security (for example, security clearance assessments); and

(ii)

information security (for example, information assurance and cybersecurity activities); and

(iii)

physical security (for example, making premises secure and protecting classified information); and

(b)

assisting with the development and implementation of the arrangements in paragraph (a); and

(c)

providing advice about national security risks (for example, national security risks associated with citizenship applications and border security).

Compare: 2003 No 9 s 8B(2)

15 Information assurance and cybersecurity activities

(1)

The information assurance and cybersecurity activities referred to in section 14(2)(a)(ii), in relation to the Government Communications Security Bureau, are

(a)

providing information assurance and cybersecurity activities to

(i)

any public authority (whether in New Zealand or overseas); and

(ii)

any person or class of persons (whether in New Zealand or overseas) authorised by the Minister for the purpose of this subsection; and

(b)

doing everything that is necessary or desirable to protect the security and integrity of communications and information infrastructures of importance to the Government of New Zealand, including identifying and responding to threats or potential threats to those communications and information infrastructures.

(2)

Subsection (1)(a) is not limited by subsection (1)(b).

(3)

Any activity carried out by the Government Communications Security Bureau under subsection (1)(a) does not require an authorisation under Part 4 if that activity is

(a)

a lawful activity; or

(b)

undertaken with the consent of the public authority or entity.

(4)

Any information obtained by the Government Communications Security Bureau in performing the activities under this section may be used only in the performance or exercise of a function, duty, or power under section 14 unless otherwise authorised under Part 4.

Compare: 2003 No 9 s 8A

15 Information assurance and cybersecurity activities

(1)

In relation to the Government Communications Security Bureau, the information assurance and cybersecurity activities referred to in paragraph (a)(ii) of the definition of protective security services, advice, and assistance in section 14(2) are

(a)

providing information assurance and cybersecurity activities to a public authority, person, or class of persons referred to in section 14(1); and

(b)

doing everything that is necessary or desirable to protect the security and integrity of communications and information infrastructures of importance to the Government of New Zealand, including identifying and responding to threats or potential threats to those communications and information infrastructures.

(2)

Subsection (1)(a) is not limited by subsection (1)(b).

(3)

An activity described in subsection (1)(a) may be carried out by the Government Communications Security Bureau

(a)

without an authorisation if that activity is

(i)

a lawful activity; or

(ii)

undertaken with the consent of the public authority, person, or class of persons; or

(b)

with an authorisation if that activity is

(i)

not otherwise a lawful activity; and

(ii)

not undertaken with the consent of the public authority, person, or class of persons.

(4)

An activity described in subsection (1)(b) may be carried out by the Government Communications Security Bureau

(a)

without an authorisation if that activity is lawful; or

(b)

with an authorisation if that activity is otherwise unlawful.

(5)

Any information obtained by the Government Communications Security Bureau in carrying out information assurance and cybersecurity activities under this section without an authorisation may only be used for

(a)

performing its function under section 14:

(b)

producing reports related to threats to, or interference with, communications or information infrastructures of importance to the Government of New Zealand and providing those reports to any person or class of persons (whether in New Zealand or overseas) authorised by the Minister for the purpose of this subsection to receive them.

(6)

Despite subsection (5), any information obtained by the Government Communications Security Bureau in carrying out information assurance and cybersecurity activities under this section may

(a)

be used for any other purpose authorised by an authorisation under Part 4:

(b)

if publicly available, be used for any other purpose relevant to its functions.

(7)

Before authorising, under subsection (5)(b), any overseas person or class of persons to receive any report or class of reports, the Minister must be satisfied that, in providing the report, the intelligence and security agency will be acting in accordance with New Zealand law and all human rights obligations recognised by New Zealand law.

(8)

In this section, Minister means the Minister responsible for the Government Communications Security Bureau.

16 Co-operation with other entities public authorities to facilitate their functions

(1)

It is a function of the intelligence and security agencies to—

(a)

co-operate with—

(i)

each other; and

(ii)

the New Zealand Police; and

(iii)

the New Zealand Defence Force; and

(b)

provide advice and assistance to the following entities New Zealand Police and the New Zealand Defence Force for the purpose of facilitating the performance or exercise of their the functions, duties, or powers: of those public authorities.

(i)

the New Zealand Police; and

(ii)

the New Zealand Defence Force.

(2)

An intelligence and security agency may perform the function under subsection (1)(b)

(a)

only to the extent that the advice and assistance are provided for the purpose of activities that the entities public authority may lawfully undertake; and

(b)

subject to and in accordance with any limitations, restrictions, and protections under which those entities public authorities perform or exercise their functions, duties, and powers; and

(c)

even though the advice and assistance might involve the exercise of powers or the sharing of capabilities that the intelligence and security agency is not, or could not be, authorised to exercise or share in the performance of its other functions.

(3)

An intelligence and security agency, in relation to any advice and assistance provided to an entity a public authority under subsection (1)(b), is subject to—

(a)

the jurisdiction of any other body or authority to the same extent as the entity’s actions are subject to the other body’s or authority’s jurisdiction (for example, the Independent Police Conduct Authority in relation to advice and assistance provided to the New Zealand Police); and

(b)

the oversight of the Inspector-General.

(4)

An employee is immune from criminal liability for any act done under this section in good faith in providing assistance to the New Zealand Police or the New Zealand Defence Force if—

(a)

the employee reasonably believed that the act was necessary to provide the assistance; and

(b)

the act was carried out in a reasonable manner; and

(c)

the act could have been lawfully carried out by the New Zealand Police or the New Zealand Defence Force, as the case may be.

Compare: 2003 No 9 s 8C

17 Co-operation with other entities to respond to imminent threat

(1)

It is a function of the intelligence and security agencies to co-operate with, and provide advice and assistance to, any entity a person, class of persons, or public authority (whether in New Zealand or overseas) that is responding to an imminent threat to the life and or safety of—

(a)

any person in New Zealand; or

(b)

any New Zealand citizen who is overseas; or

(c)

any permanent resident of New Zealand who is overseas; or

(d)

any person in an area in respect of which New Zealand has search and rescue responsibilities under international law; or

(e)

any person outside the territorial jurisdiction of any country.

(2)

An intelligence and security agency may perform this function—

(a)

only to the extent that the co-operation, advice, and assistance are necessary to respond to the imminent threat; and

(b)

only if the activities carried out in co-operating and providing advice and assistance could not, in any circumstance, be authorised by an intelligence warrant issued for the purpose of performing a function under section 13 or 14; and

(c)

subject to the restriction that any information obtained by the agencies in the performance of this function may not be used for any other purpose, except to the extent that the use for that other purpose is authorised by an intelligence warrant issued in the circumstances referred to in section 83(3) 91N(2)(a); and

(d)

even though the co-operation, advice, and assistance might involve the exercise of powers or the sharing of capabilities that the agency is not, or could not be, authorised to exercise or share in the performance of its other functions.

(3)

Any co-operation, advice, and assistance provided under this section is subject to the oversight of the Inspector-General.

(3)

As soon as practicable after undertaking any activity in the performance of its function under this section, the Director-General of an intelligence and security agency must provide details of that activity to

(a)

the Minister responsible for the intelligence and security agency; and

(b)

the Inspector-General.

18 Additional functions

In addition to the functions specified in sections 13 to 17, the intelligence and security agencies have any other function conferred or imposed on them by or under any other enactment.

Compare: 2003 No 9 s 8(5)

19 Functions of intelligence and security agencies do not include enforcement

It is not the function of an intelligence and security agency to enforce measures for national security except as may be required—

(a)

in connection with any information assurance and cybersecurity activities that are carried out by the Government Communications Security Bureau; or

(ab)

in the course of performing its function under section 16; or

(b)

under any other enactment.

Compare: 1969 No 24 s 4(2)

Duties

19A General duties applying when intelligence and security agency performing functions

When performing its functions, an intelligence and security agency must act

(a)

in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and

(b)

in the performance of its operational functions, independently and impartially; and

(c)

with integrity and professionalism; and

(d)

in a manner that facilitates effective democratic oversight.

20 Activities of agencies must be relevant to functions

The Director-General of an intelligence and security agency must take all reasonable steps to ensure

(a)

the activities of the intelligence and security agency are limited to those that are relevant to the performance of its functions; and

(b)

the intelligence and security agency is kept free from any influence or consideration that is not relevant to the agency’s functions.

Compare: 1969 No 24 s 4AA(1)(a), (b); 2003 No 9 s 8D(3)(a), (b)

21 Activities of intelligence and security agencies must be politically neutral

The Director-General of an intelligence and security agency must take all reasonable steps to ensure that the agency does not take any action for the purpose of furthering or harming the interests of any political party.

Compare: 1969 No 24 s 4AA(1)(c); 2003 No 9 s 8D(3)(c)

22 Limitation on collecting intelligence within New Zealand

(1)

Nothing in this Act limits the right of persons to engage in lawful advocacy, protest, or dissent in respect of any matter.

(2)

The exercise of the right in subsection (1) does not, of itself, justify an intelligence and security agency collecting intelligence on any person who is in New Zealand or any class of persons who are in New Zealand.

Compare: 1969 No 24 ss 2(2)

20 Specific duties of Director-General of an intelligence and security agency

The Director-General of an intelligence and security agency must take all reasonable steps to ensure that

(a)

the activities of the agency are

(i)

limited to those that are relevant to the performance of its functions; and

(ii)

kept free from any influence or consideration that is not relevant to the performance of its functions; and

(iii)

politically neutral (for example, the activities are not carried out for the purpose of promoting or harming the interests of any political party or candidate); and

(b)

any co-operation with foreign jurisdictions and international organisations in the performance of any of the agency’s functions is in accordance with New Zealand law and all human rights obligations recognised by New Zealand law.

Compare: 1969 No 24 s 4AA(1); 2003 No 9 s 8D(3)

22 Activities of intelligence and security agency not to limit freedom of expression

The exercise by any person in New Zealand or any class of persons in New Zealand of their right to freedom of expression under the law (including the right to advocate, protest, or dissent) does not of itself justify an intelligence and security agency taking any action in respect of that person or class of persons.

Compare: 1969 No 24 s 2(2)

23 Director-General of an intelligence and security agency to consult Leader of the Opposition

The Director-General of an intelligence and security agency must regularly consult the Leader of the Opposition for the purpose of keeping the Leader of the Opposition informed about matters relating to the agency’s functions.

Compare: 1969 No 24 s 4AA(3); 2003 No 9 s 8D(4)

Part 3 Covert activities of intelligence and security agencies

Subpart 1—Assumed identities

24 Purpose of subpart

The purpose of this subpart is to enable an employee of an intelligence and security agency to acquire an assumed identity, use that an assumed identity, and or maintain that an assumed identity for the purposes of—

(a)

facilitating the ability of that intelligence and security agency to carry out its activities while maintaining the secrecy of those activities:

(b)

protecting the identity of the employee.

25 Interpretation

(1)

In this subpart, unless the context otherwise requires,—

access, in relation to information, means to do any or all of the following:

(a)

inspect the information:

(b)

copy the information, or any part of the information:

(c)

obtain a printout of any information

acquire an assumed identity means to acquire evidence of the assumed identity, and includes taking steps towards acquiring evidence of the identity

agency includes—

(a)

a Minister; and

(b)

a statutory officer; and

(c)

a government agency; and

(d)

a private sector agency

assumed identity, in relation to an authorised person, means an identity the person assumes that—

(a)

is not the person’s real identity; or

(b)

involves a false or misleading representation about 1 or more aspects of the person’s real identity

authorised person means an employee of an intelligence and security agency who is authorised under section 26 to acquire an assumed identity, to use that assumed identity, and to maintain that assumed identity do 1 or more of the following:

(a)

acquire an assumed identity:

(b)

use an assumed identity:

(c)

maintain an assumed identity

employee means any person

(a)

any person who is, or will be, an employee of an intelligence and security agency; and

(b)

any person who is approved by the Director-General of an intelligence and security agency to undertake activities for that agency

evidence, in relation to an identity, means any documentation (whether physical or electronic) or thing that—

(a)

has a tendency to prove, or purports to establish, the identity (for example, a birth certificate, certificate of New Zealand citizenship, passport, or driver licence); or

(b)

can be used to support the proof or establishment of the identity (for example, a bank card or staff identity card)

false document includes a false document within the meaning of section 255 of the Crimes Act 1961

government agency means—

(a)

a Crown entity within the meaning of section 7 of the Crown Entities Act 2004; and

(b)

a department

maintain, in relation to an assumed identity, includes taking steps towards maintaining the identity

private sector agency means an entity that is not a government agency

statutory officer means a person who—

(a)

holds or performs the duties of an office established by an enactment; or

(b)

performs duties expressly conferred on that person by an enactment by virtue of that person’s office.

(2)

For the purposes of this subpart,

(a)

a record is publicly available if an agency, in the ordinary course of its activities, makes the record available to the public for inspection or searching; but

(b)

a record is not to be treated as publicly available merely because it is or may be required to be made available under the Official Information Act 1982.

26 Assumed identity may be acquired, used, and maintained

(1)

An employee of an intelligence and security agency may acquire an assumed identity, use that identity, and maintain that identity if the acquiring, use, and maintenance of the assumed identity is authorised by the Director-General of the intelligence and security agency.

(1)

An employee of an intelligence and security agency may do 1 or more of the following if the employee is authorised to do so by the Director-General of the intelligence and security agency:

(a)

acquire an assumed identity:

(b)

use an assumed identity:

(c)

maintain an assumed identity.

(2)

The Director-General may authorise the acquiring, use, and or maintenance of an assumed identity only if he or she is satisfied that the acquiring, use, and or maintenance of the assumed identity is necessary for a purpose specified in section 24.

(3)

An intelligence and security agency may make a false document for use in supporting the use or maintenance of an assumed identity if the Director-General is satisfied that—

(a)

the making and use of the false document is necessary for a purpose specified in section 24; and

(b)

the document is of a kind that is not ordinarily issued or given by a Minister or government agency.

(4)

Nothing in this subpart prevents 2 or more authorised persons from acquiring, using, or maintaining the same assumed identity.

(4)

Regard must be had to every relevant ministerial policy statement that has been issued in the following cases:

(a)

when authorising the acquiring, use, and maintenance of an assumed identity:

(b)

when acquiring, using, and maintaining that identity:

(c)

when considering whether the making and use of a false document is necessary for a purpose specified in section 24.

27 Use of assumed identity

(1)

The power for an employee to use an assumed identity includes the power to use the identity as if it were the employee’s own identity, for example, to use or assume the identity—

(a)

to acquire, or take steps towards acquiring, evidence of the assumed identity (with or without assistance under section 29):

(b)

to establish, maintain, and operate a legal entity (with or without assistance under section 38 or 39).

(2)

Subsection (1)(a) and (b) applies only to the extent that a person of that identity could lawfully do the things referred to in those paragraphs.

(3)

A thing is not unlawful for the purposes of subsection (2) merely because it involves a false or misleading representation about the employee’s identity.

(4)

The power for an employee to use an assumed identity also includes the power to use a false document made under section 26(3).

28 Request for assistance to acquire, use, and maintain assumed identity

(1)

The Director-General of an intelligence and security agency may request any other agency to assist an authorised person to do 1 or more of the following:

(a)

acquire an assumed identity:

(b)

use that an assumed identity:

(c)

maintain that an assumed identity.

(2)

A request must—

(a)

provide details of—

(i)

the authorised person that are necessary to enable the agency to provide the assistance; and

(ii)

the assumed identity being acquired (or that has been acquired) for the authorised person; and

(iii)

the assistance being sought from the agency; and

(iv)

the specific evidence of the assumed identity that the agency is requested to issue or give; and

(b)

confirm that the request is made for either or both of the purposes specified in section 24.

29 Assistance to acquire, use, and maintain assumed identity

(1)

An agency that receives a request under section 28 may grant the request if it is satisfied that

(a)

it is appropriate to do so having regard to

(i)

the purposes of this subpart; and

(ii)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(b)

reasonable protections are or will be in place for the purpose of ensuring that, as far as practicable, the authorised person will use the assumed identity appropriately.

(1)

An agency that receives a request under section 28 may

(a)

grant the request; or

(b)

decline the request in accordance with subsections (1A) and (1B).

(1A)

The agency may decline the request if

(a)

it is not satisfied that an authorised person will use the assumed identity appropriately; or

(b)

it otherwise considers that it is appropriate to decline the request.

(1B)

The agency must, in considering the matter under subsection (1A), have regard to

(a)

the purpose of this subpart; and

(b)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(c)

the protections that are or will be in place for the purpose of ensuring that an authorised person will use the assumed identity appropriately; and

(d)

any other matters the agency thinks relevant.

(2)

In granting the request, the agency may do anything to assist the authorised person, including—

(a)

issuing or giving to the authorised person evidence of the assumed identity that is of a kind ordinarily issued or given by the agency; and

(b)

omitting, amending, replacing, or inserting any information in any register or other record of information publicly available records (including making changes to an assumed identity and, if necessary, creating other identities to support an assumed identity); and

(c)

omitting, amending, replacing, or inserting operational or administrative information, as necessary, so that it supports the evidence or information described in paragraphs (a) and (b).

30 Cancellation of evidence of assumed identity

(1)

An agency must cancel evidence of an assumed identity if directed in writing to do so by the Director-General of the intelligence and security agency who requested assistance in relation to the assumed identity under section 28.

(2)

The cancellation must be made in the manner set out in the direction from the Director-General.

(3)

The manner of cancellation may include, for example, 1 or more of the following:

(a)

omitting, amending, replacing, or inserting information in a register or other record of information publicly available records:

(b)

preventing or restricting access to any information in a register or other record of information publicly available records:

(c)

omitting, amending, replacing, or inserting operational or administrative information as necessary, so that it supports the actions under paragraphs (a) and (b).

30A Provisions do not require destruction of certain information

(1)

Sections 29(2) and 30(3)

(a)

do not require an agency to destroy information if the agency is under an obligation to retain the information; and

(b)

do not require or authorise the disposal of a record for the purposes of the Public Records Act 2005.

(2)

Section 31 is subject to this section.

31 Non-compliance with enactments, policies, and practices

Evidence of an assumed identity may be issued, given, changed, or cancelled by an agency, and assistance may otherwise be given under this subpart, without complying with any enactment, policy, or practice that, in relation to the action taken by the agency, requires compliance with any specified or prescribed—

(a)

criteria or standards:

(b)

requirements:

(c)

process or procedure.

32 Restrictions on access to information about process for obtaining assistance, etc

(1)

The purpose of this section is to prevent access to information about the process for obtaining assistance under section 28 or 29 or compliance with a direction under section 30 where the access may compromise the secrecy relating to the acquisition, use, and maintenance of an assumed identity.

(2)

An agency must not permit any person (person A) to access a request made under section 28, a direction given under section 30, or any other information within its possession or control relating to the process for obtaining or giving the assistance or compliance with the direction (whether or not the request has been or will be granted or the direction has been complied with).

(3)

Subsection (2) does not apply if—

(a)

person A is the an authorised person; or

(b)

person A is the Director-General of an intelligence and security agency; or

(c)

person A is the Inspector-General of Intelligence and Security; or

(d)

it is necessary for person A to have access to the information in order for the assistance to be given or for the direction to be complied with; or

(e)

the an authorised person has given the agency written consent to person A having access to the information; or

(f)

the Director-General of the intelligence and security agency who made the request or gave the direction has given the agency written consent to person A having access to the information; or

(g)

a court has ordered that person A be permitted access to the information for any specified purpose (for example, for the purposes of a prosecution in relation to the making of a false statement).

(4)

If the agency receives an access request, the agency must, as soon as practicable, notify the Director-General of the intelligence and security agency who made the request or gave the direction.

(5)

The notice must include—

(a)

the date and time of the access request:

(b)

the name, address, and contact details (if known) of the person who made the access request:

(c)

the information sought to be accessed.

(6)

Consent under subsection (3)(e) or (f) may be given for a class of persons that includes person A without referring to person A by name.

(7)

In this section, access request means a request for access to any information referred to in subsection (2).

33 Immunity of persons assisting and of employee of agency in making false documents

(1)

A person is protected from civil and criminal liability, however it may arise, in relation to any act that the person does, or omits to do, in good faith and with reasonable care in the course of complying with—

(a)

a request made under section 28; or

(b)

a direction given under section 30.

(2)

An employee of an intelligence and security agency is protected from civil and criminal liability, however it may arise, in relation to any act that it the employee does, or omits to do, in good faith and with reasonable care in the course of making a false document under section 26(3).

(3)

In subsection (2), employee has the same meaning as in section 4.

34 Immunity of authorised persons

(1)

An authorised person is protected from civil and criminal liability, however it may arise, for any act that the authorised person does, or omits to do, in good faith and with reasonable care—

(a)

in the course of acquiring, using, or maintaining an assumed identity in accordance with an authorisation given under section 26; and

(b)

in accordance with any protections referred to in section 29(1) 29(1B)(c).

(2)

Subsection (1) does not apply to—

(a)

anything done, or not done, by an authorised person in breach of any contractual arrangement (unless the breach is a necessary consequence of using or maintaining the assumed identity); or

(b)

anything done by an authorised person if a particular qualification is needed to do the thing and the person does not have that qualification (for example, a person who is not qualified to fly a plane is not authorised to fly even though he or she has acquired a pilot’s licence under an assumed identity).

(3)

Subsection (2)(b) applies whether or not the authorised person has acquired, as evidence of an assumed identity, a document that indicates that he or she has that qualification.

(4)

In this section, qualification means a qualification, licence, registration, or other approval.

Compare: Crimes Act 1914 s 15KT (Aust)

Subpart 2—Corporate identities

35 Purpose of subpart

The purpose of this subpart is to enable an intelligence and security agency to create and maintain a legal entity through which it may conduct transactions, for the purpose of facilitating the ability of the agency to carry out its activities while maintaining the secrecy of those activities.

36 Interpretation

(1)

In this subpart, unless the context otherwise requires,—

access, in relation to information, means to do any or all of the following:

(a)

inspect the information:

(b)

copy the information, or any part of the information:

(c)

obtain a printout of any information

agency means—

(a)

the chief executive of a department:

(ab)

a department:

(b)

a Registrar or Deputy Registrar appointed under, or in accordance with, any enactment:

(c)

the a Board established under section 8 of the Charities Act 2005:

(d)

a regulatory authority

entity means—

(a)

an unincorporated body:

(b)

a body corporate:

(c)

a corporation sole:

(d)

a trust

regulatory authority means any authority having statutory functions that include any or all of the following:

(a)

monitoring the business community:

(b)

regulating any business sector:

(c)

conducting inquiries and investigations into any business activity or practice:

(d)

enforcing legislation that relates to business activities.

(2)

For the purposes of this subpart,

(a)

a record is publicly available if an agency, in the ordinary course of its activities, makes the record available to the public for inspection or searching; but

(b)

a record is not to be treated as publicly available merely because it is or may be required to be made available under the Official Information Act 1982.

37 Request for corporate identity, status, etc

(1)

The Director-General of an intelligence and security agency may, if he or she is satisfied that it is necessary for the purpose specified in section 35, request any other agency to do any of the following:

(a)

form or incorporate an entity (for example, incorporate a company or a charitable trust board):

(b)

confer on an entity any legal status or capacity (for example, register an entity as a charitable entity or financial service provider):

(c)

allocate to an entity a unique identifier (for example, allocate an entity a New Zealand Business Number or a goods and services tax registration number):

(d)

provide evidence of—

(i)

any legal identity, status, or capacity having been conferred on an entity (for example, issue a certificate of incorporation):

(ii)

any unique identifier having been allocated to an entity (for example, record an entity’s New Zealand Business Number in the New Zealand Business Number Register):

(e)

perform any action that is ancillary to, or consequential on, any of the actions specified in paragraphs (a) to (d).

(2)

A request must—

(a)

provide details of—

(i)

the entity or proposed entity that is the subject of the request that are necessary to enable the agency to take the requested action; and

(ii)

the action that the agency is being requested to take in respect of the entity or proposed entity; and

(b)

confirm that the request is made for the purpose specified in section 35.

38 Conferring corporate identity, status, etc

(1)

An agency that receives a request under section 37 may comply with that request if it is satisfied that

(a)

it is appropriate to do so having regard to

(i)

the purpose of this subpart; and

(ii)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(b)

reasonable protections are or will be in place for the purpose of ensuring that, as far as practicable, the intelligence and security agency uses appropriately

(i)

the legal identity, status, or capacity conferred on the entity or proposed entity; or

(ii)

the unique identifier allocated to the entity or proposed entity.

(1)

An agency that receives a request under section 37 may

(a)

grant the request; or

(b)

decline the request in accordance with subsections (1A) and (1B).

(1A)

An agency may decline the request if

(a)

it is not satisfied that the intelligence and security agency will use appropriately

(i)

the legal identity, status, or capacity to be conferred on the entity or proposed entity; or

(ii)

the unique identifier to be allocated to the entity or proposed entity; or

(b)

it otherwise considers that it is appropriate to decline the request.

(1B)

The agency must, in considering the matter under subsection (1A), have regard to

(a)

the purpose of this subpart; and

(b)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(c)

the protections that are or will be in place for the purpose of ensuring that the intelligence and security agency uses appropriately

(i)

the legal identity, status, or capacity conferred on the entity or proposed entity; or

(ii)

the unique identifier allocated to the entity or proposed entity; and

(d)

any other matters the agency thinks relevant.

(2)

In granting the request, the agency may do anything to take an action referred to in section 37, including—

(a)

omitting, amending, replacing, or inserting any information in any register or other record of information publicly available records (including, if necessary, creating assumed identities to support the action); and

(b)

omitting, amending, replacing, or inserting operational or administrative information, as necessary, so that it supports the information in paragraph (a).

39 Maintaining corporate identity and status

(1)

The Director-General of an intelligence and security agency may, for the purpose specified in section 35, request an agency to assist with maintaining the legal identity, status, or capacity that has been conferred under section 38.

(2)

An agency that receives a request under subsection (1) may comply with that request if it is satisfied that it is appropriate to do so having regard to

(a)

the purposes of this subpart; and

(b)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(c)

the impact on any members of the public.

(2)

An agency that receives a request under subsection (1) may

(a)

grant the request; or

(b)

decline the request if it is not satisfied that it is appropriate to provide the assistance.

(2A)

The agency must, in considering the matter under subsection (2)(b), have regard to

(a)

the purpose of this subpart; and

(b)

every relevant ministerial policy statement, to the extent that it is known to the agency; and

(c)

the impact on any members of the public; and

(d)

any other matters the agency thinks relevant.

(3)

In granting the request, the agency may do anything to give the assistance, including—

(a)

omitting, amending, replacing, or inserting any information in any register or other record of information publicly available records (including making changes to the legal identity, status, or capacity and, if necessary, creating assumed identities to support a legal identity, status, or capacity); and

(b)

omitting, amending, replacing, or inserting operational or administrative information, as necessary, so that it supports the information described in paragraph (a).

40 Dissolution or deregistration, etc, of entity

(1)

A Director-General of an intelligence and security agency who made a request under section 37 may, at any time, direct an agency that took any action of the kind specified in section 37(1) in response to his or her request to subsequently take steps necessary to—

(a)

negate the effect of the earlier action (for example, remove a company from the register of companies); and

(b)

expunge any record of that earlier action having been taken.

(2)

The steps must be made taken in the manner set out in the direction from the Director-General.

(3)

The manner of taking those steps may include, for example, 1 or more of the following:

(a)

omitting, amending, replacing, or inserting information in a register or any other record of information publicly available records:

(b)

preventing or restricting access to any information in a register or any other record of information publicly available records:

(c)

omitting, amending, replacing, or inserting operational or administrative information, as necessary, so that it supports the actions under paragraphs (a) and (b).

40A Provisions do not require destruction of certain information

(1)

Sections 38(2), 39(3), and 40(3)

(a)

do not require an agency to destroy information if the agency is under an obligation to retain the information; and

(b)

do not require or authorise the disposal of a record for the purposes of the Public Records Act 2005.

(2)

Section 41 is subject to this section.

41 Non-compliance with enactments, policies, and practices

Compliance with a request made under section 37, 39, or 43 or a direction given under section 40 may be made without complying with any enactment, policy, or practice that, in relation to the action taken by the agency, requires compliance with any specified or prescribed—

(a)

criteria or standards:

(b)

requirements:

(c)

process or procedure.

42 Restrictions on access to information about process for obtaining assistance, etc

(1)

The purpose of this section is to prevent access to information about the process for obtaining assistance under section sections 37 or to 39, an exemption under section 43, or compliance with a direction under section 40 where the access may compromise the secrecy relating to the creation and maintenance of the legal entity.

(2)

An agency must not permit any person (person A) to access a request made under section 37, 39, or 43, a direction given under section 40, or any other information within its possession or control relating to the process for obtaining or giving the assistance or exemption or compliance with the direction (whether or not the request or exemption has been or will be granted or the direction has been complied with).

(3)

Subsection (2) does not apply if—

(a)

person A is the entity; or

(b)

person A is the Director-General of an intelligence and security agency; or

(c)

person A is the Inspector-General of Intelligence and Security; or

(d)

it is necessary for person A to have access to the information in order for the assistance to be given, for the exemption to be granted, or for the direction to be complied with; or

(e)

the Director-General of an intelligence and security agency who made the request or gave the direction has consented in writing to person A having access to the information; or

(f)

a court has ordered that person A be permitted access to the information for any specified purpose (for example, for the purposes of proceedings relating to a transaction entered into by the entity).

(4)

If an agency receives an access request, the agency must, as soon as practicable, notify the Director-General of the intelligence and security agency who made the request or gave the direction.

(5)

The notice must include—

(a)

the date and time of the access request; and

(b)

the name, address, and contact details (if known) of the person who made the access request; and

(c)

the information sought to be accessed.

(6)

Consent under subsection (3)(e) may be given for a class of persons that includes person A without referring to person A by name.

(7)

In this section, access request means a request for access to any information referred to in subsection (2).

43 Entity or officer exempt from complying with legal requirements, etc

(1)

An entity that has been conferred with any legal identity, status, or capacity under section 38, or an officer of that entity, may be exempted from complying with any requirements or duties imposed by or under any enactment that apply to an entity having that legal identity, status, or capacity or to an officer of such an entity.

(2)

An exemption from complying with any requirement or duty may be granted only—

(a)

by the agency responsible for ensuring compliance with, or enforcing, that requirement or duty; and

(a)

by

(i)

the agency responsible for ensuring compliance with, or enforcing, that requirement or duty; or

(ii)

the agency that is the department responsible for the administration of the enactment referred to in subsection (1); and

(b)

on a request made by the Director-General of an intelligence and security agency.

(3)

An agency may grant an exemption only if the agency is satisfied that

(a)

the exemption is necessary to enable the entity to maintain its legal identity, status, or capacity for the purposes of this subpart; and

(b)

granting the exemption will not have a significant negative impact on any members of the public.

(3)

An agency may grant an exemption only if the agency is satisfied that granting the exemption

(a)

will not have a significant negative impact on any members of the public; and

(b)

is otherwise appropriate.

(3A)

The agency must, before granting an exemption, have regard to

(a)

whether, in the circumstances, compliance with the enactment referred to in subsection (1)

(i)

would require the entity or officer to comply with a duty or requirement that is unduly onerous or burdensome; or

(ii)

is not necessary in order to fulfil the purpose for which the duty or requirement was imposed; and

(b)

whether the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption; and

(c)

the purposes of the enactment referred to in subsection (1); and

(d)

any other matters the agency thinks relevant.

(4)

The agency must, in considering the matters under subsection (3), have regard to the purposes of the enactment referred to in subsection (1).

(5)

An exemption must be granted by notice in writing and may be subject to any terms and conditions specified by the agency.

(6)

An exemption is not—

(a)

a legislative instrument for the purposes of the Legislation Act 2012; or

(b)

a disallowable instrument for the purposes of the Legislation Act 2012.

(7)

In this section and section 45A(2)(g), officer, in relation to an entity, means

(a)

a director within the meaning of section 6(1) of the Financial Markets Conduct Act 2013; and

(b)

a person who is not a director but who occupies a position that allows the person to exercise significant influence over the management or administration of the entity (for example, a chief executive or a chief financial officer).

44 Immunity of persons complying with request or direction

A person is protected from civil and criminal liability, however it may arise, in relation to any act that the person does, or omits to do, in good faith and with reasonable care in the course of complying with—

(a)

a request made under section 37, 39, or 43; or

(b)

a direction given under section 40.

45 Immunity of entity

(1)

An entity that has been conferred any legal identity, status, or capacity under section 38 is protected from civil and criminal liability, however it may arise, for any act that the entity does, or omits to do, in good faith and with reasonable care—

(a)

in the course of carrying out its activities; and

(b)

in accordance with any protections referred to in section 38(1) 38(1B)(c).

(2)

Subsection (1) does not apply to—

(a)

anything done, or not done, by an entity in breach of any contractual arrangement (unless the breach is a necessary consequence of creating or maintaining the relevant legal identity, status, or capacity); or

(b)

anything done by an entity if a particular qualification is needed to do the thing and the entity does not have that qualification (for example, an entity that is not qualified to provide a financial service is not authorised to provide that service even though it has acquired a licence to perform that service).

(3)

Subsection (2)(b) applies whether or not the entity has acquired a document that indicates that it has that qualification.

(4)

In this section, qualification means a qualification, licence, registration, or other approval.

Subpart 3Register of assumed identities and legal entities created or maintained

45A Register of assumed identities and legal entities created or maintained

(1)

The Director-General of an intelligence and security agency must keep a register of assumed identities acquired, and legal entities created or maintained, under this Part by the agency.

(2)

The register must include,

(a)

for each authorisation given by the Director-General under section 26, details of

(i)

the assumed identity that was being acquired (or that had been acquired) for the authorised person; and

(ii)

the scope of the authorisation; and

(iii)

the person who was authorised to acquire, maintain, or use the assumed identity; and

(iv)

each false document for use in supporting the use or maintenance of the assumed identity that was created under section 26(3); and

(b)

for each request for assistance under section 28, details of

(i)

the date of the request and of the agency to which the request was made; and

(ii)

the authorised person to whom the request relates; and

(iii)

the assumed identity that was being acquired (or that had been acquired) for the authorised person; and

(iv)

the assistance that was sought from the agency; and

(v)

the specific evidence of the assumed identity that the agency was requested to issue or give; and

(vi)

whether the agency granted or refused the request; and

(c)

for each direction given under section 30, details of

(i)

the date of the direction and of the agency to which the direction was given; and

(ii)

the assumed identity to which the direction relates; and

(iii)

the evidence that was required to be cancelled and the manner of cancellation that is set out in the direction; and

(d)

for each request made under section 37, details of

(i)

the date of the request and of the agency to which the request was made; and

(ii)

the entity or proposed entity that was the subject of the request; and

(iii)

the action that the agency was requested to take in respect of the entity or proposed entity; and

(iv)

whether the agency granted or refused the request; and

(e)

for each request made under section 39, details of

(i)

the date of the request and of the agency to which the request was made; and

(ii)

the entity or proposed entity that was the subject of the request; and

(iii)

the action that the agency was requested to take in respect of the entity or proposed entity; and

(iv)

whether the agency granted or refused the request; and

(f)

for each direction given under section 40, details of

(i)

the date of the direction and of the agency to which the direction was given; and

(ii)

the entity to which the direction relates; and

(iii)

the steps required to be taken and the manner of taking those steps that is set out in the direction; and

(g)

for each request made under section 43, details of

(i)

the date of the request and of the agency to which the request was made; and

(ii)

the entity that was the subject of the request; and

(iii)

each officer to whom the exemption relates (if any); and

(iv)

the exemption that the agency was requested to grant; and

(v)

whether the agency granted or refused the request; and

(vi)

the terms and conditions of the exemption that was granted (if any).

(3)

All information required to be kept under this section by the Director-General of an intelligence and security agency may be accessed at any time by

(a)

the Minister responsible for the intelligence and security agency:

(b)

the Inspector-General.

Part 4 Authorisations

46 Purpose of Part

The purpose of this Part is to establish an authorisation regime for the intelligence and security agencies that—

(a)

authorises as lawful the carrying out of an activity by an intelligence and security agency that would otherwise be unlawful, if certain criteria are satisfied; and

(b)

confers on an intelligence and security agency specified powers for the purpose of giving effect to an authorisation.

47 Interpretation

In this Part, unless the context otherwise requires,—

access an information infrastructure means instruct, communicate with, store data in, retrieve data from, or otherwise make use of any of the resources or features of an information infrastructure (including features that provide audio or visual capability)

authorisation means

(a)

an intelligence warrant:

(b)

an authorisation given under section 77:

(c)

a removal warrant:

(d)

a practice warrant

authorised activity means an activity that is authorised by an authorisation

(a)

an intelligence warrant; or

(b)

an authorisation given under section 77; or

(c)

a removal warrant

authorising Minister, in relation to an application for an intelligence warrant, means,

(a)

in the case of an application under section 53, the Minister responsible for the intelligence and security agency making the application; or

(b)

in the case of a joint application under section 54,

(i)

the Minister responsible for the intelligence and security agencies, if the same Minister is responsible for each agency; or

(ii)

the Ministers responsible for the intelligence and security agencies, if a different Minister is responsible for each agency

communication includes signs, signals, impulses, writing, images, sounds, information, or data that a person or machine produces, sends, receives, processes, or holds in any medium

electronic tracking means the use of electronic means for the purpose of ascertaining the location, or tracking the movement, of a person or thing

incidentally obtained intelligence information means intelligence information that—

(a)

is collected in the course of performing or exercising a function under section 13 or 14; but

(b)

is not relevant to either of those functions

intelligence warrant means—

(a)

a Type 1 intelligence warrant; and

(b)

a Type 2 intelligence warrant

intercept, in relation to a private communication, includes to hear, listen to, record, monitor, acquire, or receive the communication, or acquire its substance, meaning, or sense,—

(a)

while it is taking place; or

(b)

in the course of transmission

interception device means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept communications

private activity means an activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants

private communication

(a)

means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b)

does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so

private premises means a private residence, a marae, or any other premises to which members of the public do not frequently have access

remote access search means a search of a thing that does not have a physical address that a person can enter and search

removal warrant means a warrant issued under section 90

search includes a remote access search

seize includes to take, remove, and copy, and seizing and seizure have corresponding meanings

serious crime means,—

(a)

in relation to New Zealand, any offence punishable by 2 or more years’ imprisonment; and

(b)

in relation to any other country, any offence that, if it occurred in New Zealand, would be an offence punishable by 2 or more years’ imprisonment

situation of urgency means a situation where—

(a)

there is an imminent threat to the life or safety of any person; or

(b)

the delay associated with applying for the issue of an intelligence warrant in the usual way is likely to materially prejudice the protection of New Zealand’s national security

surveillance includes—

(a)

visual surveillance; and

(b)

electronic tracking

thing includes—

(a)

a vehicle:

(b)

an information infrastructure (for example, a mobile phone, a website, or a data storage device)

Type 1 intelligence warrant means an intelligence warrant issued under section 55 55A or 55B

Type 2 intelligence warrant means an intelligence warrant issued under section 56

visual surveillance means the observation of private activity in private premises, with or without the use of a visual surveillance device, and includes any recording of that observation

visual surveillance device has the meaning given to it by section 3(1) of the Search and Surveillance Act 2012.

48 Authorisation not required to carry out lawful activity

An intelligence and security agency may carry out a lawful activity in the performance or exercise of any function, duty, or power without an authorisation.

49 Authorisation required to carry out otherwise unlawful activity

(1)

An intelligence and security agency may carry out an otherwise unlawful activity only if that activity is authorised by an authorised activity.

(a)

an intelligence warrant; or

(b)

an authorisation given under section 77; or

(c)

a removal warrant.

(2)

An authorised activity may lawfully be carried out by an intelligence and security agency despite anything to the contrary in any other Act.

49A Duty to act only as authorised

The Director-General of an intelligence and security agency must take all reasonable steps to ensure that, in relation to the carrying out of an otherwise unlawful activity, the intelligence and security agency

(a)

acts only within the scope of an authorisation; and

(b)

carries out only authorised activities; and

(c)

exercises only powers necessary for carrying out authorised activities.

49B Request for assistance to give effect to authorisations

(1)

The Director-General of an intelligence and security agency may request assistance with giving effect to an authorisation from

(a)

the New Zealand Police; or

(b)

any other organisation; or

(c)

any person.

(2)

A request must

(a)

specify the assistance required; and

(b)

be recorded in writing.

(3)

A person who agrees to assist is subject to the control of the Director-General of the intelligence and security agency and may exercise the same powers as the intelligence and security agency.

(4)

A person who assists has the same immunities as an employee of an intelligence and security agency (see section 86 of the State Sector Act 1988 and section 91W of this Act).

(5)

In this section, organisation includes a body corporate, an unincorporated body, an association of persons, a department, and a Crown entity or other instrument of the Crown.

Compare: 1969 No 24 s 4D

Subpart 1—Intelligence warrants

Types of intelligence warrants

50 Types of intelligence warrant

There are 2 types of intelligence warrants as follows:

(a)

Type 1 intelligence warrants:

(b)

Type 2 intelligence warrants.

51 Type 1 intelligence warrant

A Type 1 intelligence warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity for any authorised purpose in respect of any person who is for the purpose of collecting information about, or to do any other thing directly in relation to,

(a)

a New Zealand citizen; orany person who is

(i)

a New Zealand citizen; or

(ii)

a permanent resident of New Zealand; or

(b)

a permanent resident of New Zealand.a class of persons that includes a person who is

(i)

a New Zealand citizen; or

(ii)

a permanent resident of New Zealand.

52 Type 2 intelligence warrant

A Type 2 intelligence warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity for any authorised purpose other than in respect of a person described in section 51 for the purpose of collecting information, or to do any other thing, in circumstances where a Type 1 warrant is not required.

Application and issue of intelligence warrants

53 Application for intelligence warrant

(1)

An application for an intelligence warrant must be made by the Director-General of an intelligence and security agency.

(2)

An application for a Type 1 intelligence warrant must be made to the Attorney-General and the Chief Commissioner of Intelligence Warrants.

(3)

An application for a Type 2 intelligence warrant must be made to the Attorney-General.

53 Application for issue of intelligence warrant

(1)

An application for the issue of an intelligence warrant must be made in writing by the Director-General of an intelligence and security agency and

(a)

set out the type of intelligence warrant applied for; and

(b)

set out detail of the activity proposed to be carried out under the warrant; and

(c)

set out the grounds on which the application is made (including the reasons why the legal requirements for issuing the warrant are believed to be satisfied); and

(d)

contain a statement in which the Director-General making the application confirms that all the information set out in the application is true and correct.

(2)

An application for a Type 1 intelligence warrant must be made to

(a)

the authorising Minister; and

(b)

the Chief Commissioner of Intelligence Warrants.

(3)

An application for a Type 2 intelligence warrant must be made to the authorising Minister.

54 Joint application for intelligence warrant

The Director-General of Security and the Director-General of the Government Communications Security Bureau may jointly apply for the issue of an intelligence warrant.

55 Issue of Type 1 intelligence warrant

(1)

A Type 1 intelligence warrant is issued jointly by

(a)

the Attorney-General; and

(b)

a Commissioner of Intelligence Warrants.

(2)

A Type 1 intelligence warrant may be issued to the Director-General of an intelligence and security agency only if the Attorney-General and a Commissioner of Intelligence Warrants are satisfied

(a)

that,

(i)

in carrying out the otherwise unlawful activity, the intelligence and security agency will contribute to the objective specified in section 11(a); and

(ii)

the additional criteria in section 57 are met; or

(b)

that,

(i)

in carrying out the otherwise unlawful activity, the intelligence and security agency will contribute to the objective specified in section 11(b) or (c); and

(ii)

there is a reasonable suspicion that a person referred to in section 51(a) in respect of whom the otherwise unlawful activity is proposed to be carried out is acting, or purporting to act, for or on behalf of

(A)

a foreign person; or

(B)

a foreign organisation; or

(C)

a designated terrorist entity; and

(iii)

the additional criteria in section 57 are met; or

(c)

that,

(i)

in carrying out the otherwise unlawful activity, the intelligence and security agency will contribute to the objective specified in section 11(b) or (c); and

(ii)

there is a reasonable suspicion that a class of persons referred to in section 51(a) in respect of whom the otherwise unlawful activity is proposed to be carried out are employed by, or are members of,

(A)

a foreign government; or

(B)

a designated terrorist entity; and

(iii)

the additional criteria in section 57 are met.

(1)

A Type 1 intelligence warrant is issued jointly by

(a)

the authorising Minister; and

(b)

a Commissioner of Intelligence Warrants.

(2)

A Type 1 intelligence warrant may only be issued in accordance with section 55A or 55B.

55A Issue of Type 1 intelligence warrant to contribute to protection of national security

(1)

A Type 1 intelligence warrant may be issued to the Director-General of an intelligence and security agency if the authorising Minister and a Commissioner of Intelligence Warrants are satisfied

(a)

that the issue of the Type 1 intelligence warrant will enable the intelligence and security agency to carry out an activity that

(i)

is necessary to contribute to the protection of national security; and

(ii)

identifies, enables the assessment of, or protects against any of the harms specified in subsection (2); and

(b)

that the additional criteria in section 57 are met.

(2)

The harms referred to in subsection (1)(a)(ii) are

(a)

terrorism or violent extremism:

(b)

espionage or other foreign intelligence activity that

(i)

is directed at a New Zealand interest (whether or not that interest is in New Zealand):

(ii)

is carried out by a person who is a New Zealand citizen or permanent resident of New Zealand (whether or not that person is in New Zealand:

(iii)

occurs in New Zealand (whether or not directed at a New Zealand interest):

(c)

sabotage (within the meaning of section 79 of the Crimes Act 1961):

(d)

proliferation of weapons of mass destruction:

(e)

anything that may be relevant to serious crime and that

(i)

originates from outside New Zealand or is influenced from outside New Zealand; or

(ii)

involves the movement of money, goods, or people

(A)

within a country outside New Zealand; or

(B)

from a country outside New Zealand to New Zealand or to any other country; or

(iii)

has potential to damage New Zealand’s international relations or economic well-being:

(f)

threats to, or interference with, information (including communications) or information infrastructure of importance to the Government of New Zealand:

(g)

threats to

(i)

international security that have the potential to impact adversely on New Zealand’s interests:

(ii)

the operations of the Government of New Zealand:

(iii)

the sovereignty of New Zealand, including New Zealand’s territorial and border integrity and its right to manage or control its natural resources.

55B Issue of Type 1 intelligence warrant to contribute to New Zealand’s international relations or economic well-being

(1)

A Type 1 intelligence warrant may be issued to the Director-General of an intelligence and security agency if the authorising Minister and a Commissioner of Intelligence Warrants are satisfied of the matters in subsection (2).

(2)

The matters are

(a)

that the issue of the Type 1 intelligence warrant will enable the intelligence and security agency to carry out an activity that will contribute to

(i)

the international relations and well-being of New Zealand; or

(ii)

the economic well-being of New Zealand; and

(b)

that there are reasonable grounds to suspect that

(i)

a person referred to in section 51(a) in respect of whom the activity is proposed to be carried out is acting, or purporting to act, for or on behalf of

(A)

a foreign person; or

(B)

a foreign organisation; or

(C)

a designated terrorist entity; or

(ii)

any New Zealand persons within a class of persons referred to in section 51(b) in respect of whom the activity is proposed to be carried out are employed by, or are members of,

(A)

a foreign government; or

(B)

a designated terrorist entity; and

(c)

that the additional criteria in section 57 are met.

56 Issue of Type 2 intelligence warrant

(1)

A Type 2 intelligence warrant is issued by the Attorney-General.

(2)

A Type 2 intelligence warrant may be issued to the Director-General of an intelligence and security agency only if the Attorney-General is satisfied that,

(a)

in carrying out the otherwise unlawful activity, the intelligence and security agency will contribute to 1 or more of the objectives specified in section 11; and

(b)

the additional criteria in section 57 are met.

(1)

A Type 2 intelligence warrant is issued by the authorising Minister.

(2)

A Type 2 intelligence warrant may be issued to the Director-General of an intelligence and security agency only if the authorising Minister is satisfied of the matters in subsection (3).

(3)

The matters are

(a)

that the issue of the Type 2 intelligence warrant will enable the intelligence and security agency to carry out an activity that

(i)

is necessary to contribute to the protection of national security; or

(ii)

will contribute to

(A)

the international relations and well-being of New Zealand; or

(B)

the economic well-being of New Zealand; and

(b)

that the activity is not in respect of a person, or class of persons, for which a Type 1 warrant is required; and

(c)

that the additional criteria in section 57 are met.

57 Additional criteria for issue of intelligence warrant

The additional criteria for the issue of an intelligence warrant referred to in sections 55(2) and 56(2)(b) sections 55A(1)(b), 55B(2)(c), and 56(3)(c) are that—

(a)

the carrying out of the otherwise unlawful activity (a proposed activity) by an intelligence and security agency is necessary for one of the following purposes: to enable the agency to perform a function under section 13 or 14; and

(i)

to perform any function of the intelligence and security agency; or

(ii)

to test, maintain, or develop the capabilities of the intelligence and security agency; or

(iii)

to train employees to perform any function of the intelligence and security agency; and

(b)

the proposed activity is proportionate to the purpose for which it is to be carried out; and

(c)

the purpose of the warrant cannot reasonably be achieved by a less intrusive means; and

(d)

there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the warrant beyond what is necessary and reasonable for the proper performance of a function of the intelligence and security agency; and

(i)

nothing will be done in reliance on the intelligence warrant beyond what is necessary and reasonable for the proper performance of the function under section 13 or 14; and

(ii)

all reasonably practicable steps will be taken to minimise the impact of the proposed activity on any members of the public; and

(iii)

any information collected in reliance on the intelligence warrant will be retained, used, and disclosed only in accordance with this Act or any other enactment.

(e)

there are satisfactory arrangements in place to ensure that any information collected in reliance on the warrant will be retained, used, and disclosed only in accordance with this Act or any other enactment.

Compare: 1969 No 24 s 4A(3)(b), (c); 2003 No 9 s 15A(2)(a)–(d)

58 Minister of Foreign Affairs to be consulted in certain cases

(1)

The Attorney-General must consult the Minister of Foreign Affairs before a warrant is issued authorising any activity that is likely to have implications for

(a)

New Zealand’s foreign policy; or

(b)

New Zealand’s international relations.

(2)

For the purposes of subsection (1), warrant means

(a)

a Type 1 intelligence warrant issued under section 55 or 69; and

(b)

a Type 2 intelligence warrant issued under section 56 or 70; and

(c)

a removal warrant issued under section 90.

59 Issue of joint intelligence warrant

(1)

A joint Type 1 intelligence warrant may be issued under section 55 55A or 55B if the Attorney-General authorising Minister and a Commissioner of Intelligence Warrants consider it appropriate in the circumstances to do so.

(2)

A joint Type 2 intelligence warrant may be issued under section 56 if the Attorney-General authorising Minister considers it appropriate in the circumstances to do so.

(3)

The Director-General of Security and the Director-General of the Government Communications Security Bureau may jointly or severally—

(a)

carry out all of the activities authorised by a joint intelligence warrant; and

(b)

exercise all of the powers under a joint intelligence warrant.

(4)

Subsection (3) applies even though an activity or a power authorised by the joint intelligence warrant is not an activity or a power that the Director-General could be authorised to carry out or exercise by an intelligence warrant that is not a joint intelligence warrant (for example, the Director-General of the Government Communications Security Bureau may exercise a power that may be exercised by the Director-General of Security).

59A Minister of Foreign Affairs to be consulted in relation to issue of intelligence warrants in certain cases

The authorising Minister must consult the Minister of Foreign Affairs before an intelligence warrant is issued authorising any activity that is likely to have implications for

(a)

New Zealand’s foreign policy; or

(b)

New Zealand’s international relations.

60 Intelligence warrants may be issued subject to restrictions or conditions

An intelligence warrant may be issued subject to any restrictions or conditions that are considered desirable in the public interest by—

(a)

the Attorney-General authorising Minister and a Commissioner of Intelligence Warrants, in the case of a Type 1 intelligence warrant:

(b)

the Attorney-General authorising Minister, in the case of a Type 2 intelligence warrant.

Compare: 1969 No 24 ss 4B(2), (3), 4IC(1)(b); 2003 No 9 s 15A(4)

60A Term of intelligence warrant

(1)

An intelligence warrant must specify a period not exceeding 12 months during which it is valid.

(2)

The expiry of an intelligence warrant does not prevent a further application for an intelligence warrant in relation to the same activity.

Compare: 1969 No 24 s 4C

61 Matters required to be stated in intelligence warrant

An intelligence warrant must state—

(a)

the type of intelligence warrant issued:

(b)

the Director-General to whom the warrant is issued or, if the warrant is issued on a joint application made under section 54, that it is issued to the Director-General of Security and the Director-General of the Government Communications Security Bureau:

(c)

the objective in section 11 to which the warrant relates:

(d)

the purpose for which the warrant is issued:

(e)

the person or class of persons (if any) in respect of whom the otherwise unlawful activity is being carried out:

(f)

the particular activity or activities authorised to be carried out:

(g)

any restrictions or conditions or restrictions imposed under section 61 section 60:

(h)

the term of the warrant:

(i)

the date of issue of the warrant.

Compare: 1969 No 24 s 4B; 2003 No 9 s 15D

62 Term of intelligence warrant

(1)

An intelligence warrant must specify a period not exceeding 12 months for which it is valid.

(2)

The expiry of an intelligence warrant does not prevent a further application for an intelligence warrant in relation to the same activity.

Compare: 1969 No 24 s 4C

Authorised activities and powers

63 Authorised activities

(1)

An intelligence warrant may authorise the carrying out of 1 or more of the following activities that would otherwise be unlawful:

(a)

conducting surveillance in respect of 1 or more—

(i)

persons or classes of persons:

(ii)

places or classes of places:

(iii)

things or classes of things:

(b)

intercepting any private communications or classes of private communications:

(c)

searching 1 or more—

(i)

places or classes of places:

(ii)

things or classes of things:

(d)

seizing—

(i)

1 or more communications or classes of communications:

(ii)

information or 1 or more classes of information:

(iii)

1 or more things or classes of things:

(e)

requesting the Government of another jurisdiction to undertake an activity that, if undertaken by an intelligence and security agency, would be an unlawful activity:

(f)

taking any action to protect a covert collection capability:

(g)

any human intelligence activity to be undertaken for the purpose of collecting intelligence, not being an activity that—

(i)

involves the use or threat of violence against a person; or

(ii)

perverts, or attempts to pervert, the course of justice.

(2)

An intelligence warrant issued to the Director-General of the Government Communications Security Bureau may, in addition to any of the activities specified in subsection (1), authorise the doing of any other act that is necessary or desirable to protect the security and integrity of communications and information infrastructures of importance to the Government of New Zealand Government (including identifying and responding to threats or potential threats to those communications or infrastructures) without the consent of any person.

64 Authorised activities under purpose-based warrant

(1)

An intelligence warrant may authorise the carrying out of 1 or more of the following activities for a purpose specified in the warrant and for reasons specified in the warrant:

(a)

conducting surveillance:

(b)

intercepting any private communications:

(c)

searching 1 or more

(i)

places or classes of places:

(ii)

things or classes of things:

(d)

seizing

(i)

1 or more communications or classes of communications:

(ii)

information or 1 or more classes of information:

(iii)

1 or more things or classes of things:

(e)

undertaking the activities specified in section 63(1)(e) to (g).

(2)

An intelligence warrant may authorise the carrying out of activities for a specified purpose and for reasons specified in the warrant without describing the persons in respect of whom, or the places at which, the activities will be undertaken only,

(a)

in the case of a Type 1 intelligence warrant, if the Attorney-General and the Commissioner of Intelligence Warrants are satisfied that the objectives of the warrant cannot be accomplished by the provisions of section 63 (whether because of difficulties in identifying the persons or places concerned or otherwise):

(b)

in the case of a Type 2 intelligence warrant, if the Attorney-General is satisfied that the objectives of the warrant cannot be accomplished by the provisions of section 63 (whether because of difficulties in identifying the persons or places concerned or otherwise).

(3)

However, if an intelligence warrant is to be, or may be, used in respect of 1 or more persons specified in subsection (4) and it is proposed to install a surveillance device (including a visual surveillance device) or access an information infrastructure, the warrant must specify the kinds of persons or places or information infrastructure in respect of which those activities may be carried out.

(4)

The persons referred to in subsection (3) are

(a)

New Zealand citizens:

(b)

permanent residents of New Zealand.

65 Powers of New Zealand Security Intelligence Service acting under intelligence warrant

(1)

The Director-General of the New Zealand Security Intelligence Service, or an employee of that intelligence and security agency authorised by the Director-General for that purpose, may exercise any of the following powers to give effect to an intelligence warrant:

(a)

enter—

(i)

any place, vehicle, or other thing that is specified in the intelligence warrant; or

(ii)

any place, vehicle, or other thing that is owned or occupied by a person identified in the intelligence warrant; or

(iii)

any place, vehicle, or other thing where a person identified in the intelligence warrant is, or, is, is likely to be, or has been, at any time; or

(iv)

in any case where an information infrastructure is identified in the intelligence warrant, any place, vehicle, or other thing—

(A)

where that information infrastructure is or is likely to be at any time; or

(B)

that it is necessary to enter in order to access that information infrastructure:

(b)

install, use, maintain, or remove—

(i)

a visual surveillance device; or

(ii)

a tracking device; or

(iii)

an interception device:

(c)

access an information infrastructure or a class of information infrastructures:

(d)

open (by any means) or interfere with a vehicle, container, receptacle, or other thing:

(e)

take photographs, sound recordings, video recordings, or drawings of the place, vehicle, or other thing entered or searched, and of any item found in or on that place or thing, if the person exercising the power has reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the activity:

(f)

bring into and use in or on a place, vehicle, or other thing searched any equipment:

(g)

use any equipment found in or on the place, vehicle, or other thing searched:

(h)

extract and use, in the course of carrying out activities allowed by the warrant, any electricity from a place or thing:

(i)

bring into and use in or on a place, vehicle, or other thing searched a dog (being a dog that is trained to undertake searching or other intelligence duties and that is under the control of its usual handler):

(j)

use any force in respect of any property or thing that is reasonable for the purposes of carrying out a search or seizure:

(k)

do any act that is reasonable in the circumstances and reasonably required to conceal the fact that anything has been done under the warrant and to keep the activities of the intelligence and security agency covert:

(l)

do any other act that is reasonable in the circumstances and reasonably required to achieve the purposes for which the warrant was issued.

(2)

Subsection (1) applies subject to any restrictions or conditions imposed on the warrant under section 60 and stated in the warrant.

Compare: 1969 No 24 s 4E(1), (3); 2012 No 24 s 110(c), (e), (f), (j)

66 Powers of Government Communications Security Bureau under intelligence warrant

(1)

The Director-General of the Government Communications Security Bureau, or an employee of that intelligence and security agency authorised by the Director-General for that purpose, may exercise the following powers to give effect to the intelligence warrant:

(a)

access an information infrastructure, or a class of information infrastructures:

(b)

install, use, maintain, or remove a visual surveillance device to maintain the operational security of any activity authorised to be carried out:

(c)

install, use, maintain, or remove an interception device:

(d)

extract and use, in the course of carrying out activities allowed by the warrant, any electricity from a place or thing:

(e)

do any act that is reasonable in the circumstances and reasonably required to conceal the fact that anything has been done under the warrant and to keep the activities of the intelligence agency covert:

(f)

do any other act that is reasonable in the circumstances and reasonably required to achieve the purposes for which the warrant was issued.

(2)

Subsection (1) applies subject to any restrictions or conditions imposed on the warrant under section 60 and stated in the warrant.

(3)

In this section, access an information infrastructure includes—

(a)

instructing, communicating with, storing data in, retrieving data from, or otherwise making use of the resources or features of the infrastructure:

(b)

making photographs, videos, and sound recordings, or using the infrastructure or any part of it.

67 Privileged communications or privileged information

(1)

An intelligence warrant may not authorise the carrying out of any activity or the exercise of any power for the purpose of obtaining privileged communications or privileged information of—

(a)

a New Zealand citizen; or

(b)

a permanent resident of New Zealand.

(2)

In subsection (1), privileged communications or privileged information means communications that are or information protected by legal professional privilege or privileged in proceedings under section 54, 56, 58, or 59 or any of sections 56 to 59 of the Evidence Act 2006.

Compare: 1969 No 24 ss 4A(3)(d), 4IB(3)(d); 2003 No 9 s 15C

Requests for assistance

68 Request for assistance to give effect to intelligence warrant

(1)

A Director-General of an intelligence and security agency may request assistance with giving effect to an intelligence warrant from

(a)

the New Zealand Police; or

(b)

any person; or

(c)

any other organisation.

(2)

A request must

(a)

specify the assistance required; and

(b)

be recorded in writing.

(3)

A person who assists is subject to the control of the Director-General of the intelligence and security agency and may exercise the same powers as the intelligence and security agency.

(4)

A person who assists has the same immunities as an employee of an intelligence and security agency (see section 86 of the State Sector Act 1988 and section 88).

(5)

In this section, organisation includes a body corporate, an unincorporated body, an association of persons, a department, and a Crown entity or other instrument of the Crown.

Compare: 1969 No 24 s 4D

Urgent intelligence warrants

69 Urgent issue of Type 1 intelligence warrant

(1)

This section applies if an application for the issue of a Type 1 intelligence warrant is made in a situation of urgency.

(2)

If this section applies,—

(a)

the Attorney-General authorising Minister and a Commissioner of Intelligence Warrants may, if satisfied that a situation of urgency exists and that it is necessary to do so,—

(i)

allow the application to be made orally (for example, by a telephone call) or by personal appearance, and excuse the applicant from putting all or any part of the application in writing; and

(ii)

issue urgently in accordance with section 55A or 55B a Type 1 intelligence warrant; or

(b)

the Attorney-General authorising Minister may, if satisfied that a situation of urgency exists and that it is necessary to do so without the involvement of a Commissioner of Intelligence Warrants,—

(i)

allow the application to be made orally (for example, by a telephone call) or by personal appearance and excuse the applicant from putting all or any part of the application in writing; and

(ii)

issue urgently in accordance with section 55A or 55B a Type 1 intelligence warrant.

(3)

If a Type 1 intelligence warrant is issued under subsection (2)(b)(ii), the warrant is effective as if it had been issued by the Attorney-General authorising Minister and a Commissioner of Intelligence Warrants, but—

(a)

the Attorney-General authorising Minister must immediately notify the Chief Commissioner of Intelligence Warrants; and

(b)

the Chief Commissioner of Intelligence Warrants may, at any time before an application required by section 72 is determined, revoke the warrant.

70 Urgent issue of Type 2 intelligence warrant

(1)

This section applies if an application for the issue of a Type 2 intelligence warrant is made in a situation of urgency.

(2)

The Attorney-General authorising Minister may, if satisfied that a situation of urgency exists and that it is necessary to do so,—

(a)

allow the application to be made orally (for example, by a telephone call) or by personal appearance and excuse the applicant from putting all or any part of the application in writing; and

(b)

issue urgently in accordance with section 56 a Type 2 intelligence warrant.

71 Reasons for urgent issue of intelligence warrant to be recorded

The reasons for the urgent issue of an intelligence warrant under section 69 or 70 must be recorded as soon as practicable by—

(a)

the Attorney-General authorising Minister; or

(b)

the Attorney-General authorising Minister and the Commissioner of Intelligence Warrants, in the case of a warrant issued under section 69(2)(a)(ii).

72 Intelligence warrant issued under section 69 revoked unless confirmed

(1)

An intelligence warrant issued under section 69 is revoked by the operation of law 48 hours after its issue, unless, before the expiry of that period, the applicant has made an application under section 53 for the issue of a Type 1 intelligence warrant.

(2)

On an application made under section 53, the Attorney-General authorising Minister and a Commissioner of Intelligence Warrants may—

(a)

confirm the urgent intelligence warrant, and that warrant must then be treated as a Type 1 intelligence warrant issued under that section on the date on which the urgent intelligence warrant was issued; or

(b)

revoke the intelligence warrant issued under section 69.

73 An Intelligence warrant issued under section 70 revoked unless confirmed

(1)

An intelligence warrant issued under section 70 is revoked by the operation of law 48 hours after its issue unless, before the expiry of that period, the applicant has made an application under section 53 for the issue of a Type 2 intelligence warrant.

(2)

On an application made under section 53, the Attorney-General authorising Minister may—

(a)

confirm the urgent intelligence warrant, and that warrant must then be treated as a Type 2 intelligence warrant issued under that section on the date on which the urgent intelligence warrant was issued; or

(b)

revoke the intelligence warrant issued under section 70.

74 Information to be destroyed if intelligence warrant issued under section 69 or 70 revoked

(1)

If an intelligence warrant issued under section 69 is revoked under section 72(1), all information collected under that warrant must be destroyed as soon as practicable.

(2)

If an intelligence warrant issued under section 70 is revoked under section 73(1), all information collected under that warrant must be destroyed as soon as practicable.

(3)

Subsections (1) and (2) do not apply to any incidentally obtained intelligence information that may be retained under section 91 section 91P.

75 Intelligence warrants issued under section 69 or 70 to be referred to Inspector-General

An intelligence warrant issued under section 69 or 70 must be referred as soon as practicable after issue to the Inspector-General for review.

Amendment and revocation of intelligence warrants

76 Amendment and revocation of intelligence warrants

(1)

The Attorney-General and a Commissioner of Intelligence Warrants may at any time amend or revoke a Type 1 intelligence warrant.

(2)

The Attorney-General may at any time amend or revoke a Type 2 intelligence warrant.

Authorisations by Director-General of intelligence and security agency

77 Very urgent authorisations by Director-General of intelligence and security agency

(1)

This section applies if—

(a)

an application for the urgent issue of an intelligence warrant would otherwise need to be made; but

(b)

the delay in making that application would defeat the purpose of obtaining the warrant.

(2)

The Director-General of an intelligence and security agency may authorise the carrying out of an otherwise unlawful activity for which—

(a)

a Type 1 intelligence warrant is required; or

(b)

a Type 2 intelligence warrant is required.

(3)

Before giving an authorisation under subsection (2)(a), the Director-General of an intelligence and security agency must be satisfied of the matters in section 55A or 55B.

(4)

Before giving an authorisation under subsection (2)(b), the Director-General of an intelligence and security agency must be satisfied of the matters in section 56.

78 Authorisation given under section 77(2)(a) effective as Type 1 intelligence warrant

(1)

An authorisation given under section 77(2)(a) is effective as if it were a Type 1 intelligence warrant, but the Director-General of an intelligence and security agency must—

(a)

immediately notify—

(i)

the Attorney-General authorising Minister; and

(ii)

the Chief Commissioner of Intelligence Warrants; and

(b)

within 24 hours after giving the authorisation, make an application under section 53 for the issue of a Type 1 intelligence warrant.

(2)

An authorisation given under section 77(2)(a) is revoked by the operation of law 24 hours after it is given unless, before the expiry of that period, an application under section 53 is made.

(3)

The Attorney-General authorising Minister or the Chief Commissioner of Intelligence Warrants may, at any time before an application made under section 53 is determined, revoke an authorisation given under section 77(2)(a).

(4)

If a Type 1 intelligence warrant is not issued in respect of the unlawful activity authorised by the Director-General, the authorisation is revoked.

79 Authorisation given under section 77(2)(b) effective as Type 2 intelligence warrant

(1)

An authorisation given under section 77(2)(b) is effective as if it were a Type 2 intelligence warrant, but the Director-General of an intelligence and security agency must—

(a)

notify the Attorney-General authorising Minister; and

(b)

within 24 hours after giving the authorisation, make an application under section 53 for the issue of a Type 2 intelligence warrant.

(2)

An authorisation given under section 77(2)(b) is revoked by the operation of law 24 hours after it is given unless, before the expiry of that period, an application under section 53 is made.

(3)

The Attorney-General authorising Minister may, at any time before an application made under section 53 is determined, revoke an authorisation given under section 77(2)(b).

(4)

If a Type 2 intelligence warrant is not issued in respect of the unlawful activity authorised by the Director-General, the authorisation is revoked.

80 Information to be destroyed if authorisation given under section 77 revoked

(1)

If an authorisation given under section 77(2)(a) or (b) is revoked, all information collected under that authorisation must be destroyed as soon as practicable.

(2)

Subsection (1) does not apply to any incidentally obtained intelligence information that may be retained under section 91 section 91P.

81 Authorisations given under section 77 to be referred to Inspector-General

An authorisation given under section 77 must be referred as soon as practicable after it is given to the Inspector-General for review.

Collection of intelligence

82 Duty to collect intelligence only within scope of authorised activity

In carrying out an authorised activity, and in exercising any power for the purpose of carrying out that activity, a Director-General of an intelligence and security agency must take all practicable steps that are reasonable in the circumstances to minimise the likelihood of collecting intelligence outside the scope of the authorised activity.

83 Collection of unauthorised intelligence

(1)

If, in carrying out an authorised activity, intelligence is unintentionally collected outside the scope of the authorised activity (unauthorised intelligence), that intelligence must be destroyed.

(2)

Subsection (1) is subject to

(a)

subsection (3):

(b)

section 91.

(3)

If the unauthorised intelligence

(a)

is collected in the carrying out of an activity authorised under a Type 2 intelligence warrant, or during the provision of cooperation, advice, and assistance under section 17, and the collection of that intelligence is of a kind that could be authorised under a Type 1 intelligence warrant,

(i)

an application for a Type 1 intelligence warrant under section 53 authorising the collection of the unauthorised intelligence may be made as soon as practicable; and

(ii)

the unauthorised intelligence need not be destroyed if a Type 1 intelligence warrant is issued authorising its collection; or

(b)

is collected during the provision of cooperation, advice, and assistance under section 17, and the collection of that intelligence is of a kind that could be authorised under a Type 2 intelligence warrant,

(i)

an application for a Type 2 intelligence warrant under section 53 authorising the collection of the unauthorised intelligence may be made as soon as practicable; and

(ii)

the unauthorised intelligence need not be destroyed if a Type 2 intelligence warrant is issued authorising its collection.

Offences and immunities

84 Failure to destroy information

A person commits an offence and is liable on conviction to a fine not exceeding $10,000 if the person knowingly fails to comply with

(a)

section 74:

(b)

section 80:

(c)

section 83.

Compare: 1969 No 24 ss 4G(3), 4IB(11), 4IE(11); 2003 No 9 s 23(2)

85 Unlawful use or disclosure of information

(1)

A person carrying out an authorised activity must not, other than in the performance or exercise of the person’s functions, duties, or powers or with the consent of the relevant Minister,

(a)

disclose that the activity is an authorised activity; or

(b)

use any information obtained from the carrying out of the authorised activity; or

(c)

disclose any information obtained from the carrying out of the authorised activity.

(2)

A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding $10,000.

(3)

In this section, relevant Minister means the Minister responsible for the intelligence and security agency authorised to carry out the activity.

Compare: 1969 No 24 s 12A(1), (2), (4)

86 Unlawful disclosure of acquired information

(1)

A person who acquires knowledge of any information knowing that it was gained from the carrying out of an authorised activity must not knowingly disclose that information otherwise than in the course of his or her duties.

(2)

A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding $10,000.

Compare: 1969 No 24 s 12A(3), (4)

87 Immunities from criminal liability in relation to obtaining intelligence warrant

(1)

An employee is immune from criminal liability for any act done in good faith to obtain an intelligence warrant if

(a)

the person reasonably believed that the act was necessary to obtain the warrant; and

(b)

the carrying out of the activity was done in a reasonable manner.

(2)

Subsection (1) applies even if the intelligence warrant is subsequently

(a)

revoked; or

(b)

determined to have been invalidly issued or given.

(3)

Subsection (2)(b) is to avoid doubt.

88 Immunities from criminal liability in relation to carrying out authorised activity

(1)

A person is immune from criminal liability for any act done in good faith in carrying out an authorised activity if

(a)

the person reasonably believed that doing the act was necessary to carry out the activity; and

(b)

the carrying out of the activity was done in a reasonable manner.

(2)

Subsection (1) applies even if the authorisation is subsequently

(a)

revoked; or

(b)

determined to have been invalidly issued or given.

(3)

Subsection (2)(b) is to avoid doubt.

Register of intelligence warrants

89 Register of intelligence warrants

(1)

The Director-General of an intelligence and security agency must keep a register of intelligence warrants issued to him or her.

(2)

The following information must be entered in the register in relation to every intelligence warrant:

(a)

the type of warrant issued:

(b)

the particular activity or activities authorised to be carried out:

(c)

any restrictions or conditions the intelligence warrant is subject to:

(d)

the term for during which the intelligence warrant is valid:

(e)

the date on which the intelligence warrant was issued.

(3)

The Director-General of an intelligence and security agency must also keep, in conjunction with the register,—

(a)

a copy of every application made for an intelligence warrant made by him or her; and

(b)

a record of any information provided by, or a copy of any document received from, the Minister of Foreign Affairs in the course of any consultation under section 58 59A; and

(c)

the original of every intelligence warrant issued to him or her.

(4)

All information required to be kept under this section by the Director-General of an intelligence and security agency may be accessed at any time by—

(a)

the Minister responsible for the intelligence and security agency:

(b)

the Attorney-General:

(c)

the Chief Commissioner of Intelligence Warrants, in relation to Type 1 intelligence warrants:

(d)

the Inspector-General.

Compare: 2003 No 9 s 19

Amendment and revocation of intelligence warrants

89A Amendment and revocation of intelligence warrants

(1)

The authorising Minister and a Commissioner of Intelligence Warrants may

(a)

at any time amend or revoke a Type 1 intelligence warrant; and

(b)

direct that all or any specified information obtained under the warrant before it was amended or revoked be destroyed.

(2)

The authorising Minister may

(a)

at any time amend or revoke a Type 2 intelligence warrant; and

(b)

direct that all or any specified information obtained under the warrant before it was amended or revoked be destroyed.

Subpart 2—Removal warrants

90 Issue of removal warrant to retrieve previously installed devices

(1)

This section applies if any device or equipment that has been installed in accordance with an intelligence warrant issued to the Director-General of an intelligence and security agency (the original intelligence warrant) remains in a place or thing after the original intelligence warrant has ceased to be in force.

(2)

The Attorney-General may, on the written application of the Director-General of the intelligence and security agency to whom the original intelligence warrant was issued, issue a removal warrant authorising the removal of the device or equipment from the place or thing.

(3)

A person acting under a removal warrant may enter the place or thing concerned or take possession of the thing concerned for the purpose of removing the device or equipment and may

(a)

search the place or thing entered; and

(b)

exercise any of the powers specified in section 65(1)(d), (f) to (h), (j), and (k).

(2)

The Director-General of Security may make a written application to the Minister responsible for the New Zealand Security Intelligence Service for the issue of a removal warrant authorising the removal of the device or equipment.

(3)

A removal warrant may be issued to the Director-General of Security if the Minister responsible for that agency is satisfied that the issue of the warrant is necessary.

(4)

A removal warrant must specify a period not exceeding 12 months for during which it is valid.

Compare: 1969 No 24 s 4I(1), (3)

90A Minister of Foreign Affairs to be consulted in relation to issue of removal warrants in certain cases

The Minister responsible for an intelligence and security agency making an application under section 90 must consult the Minister of Foreign Affairs before issuing a removal warrant if that warrant is likely to have implications for

(a)

New Zealand’s foreign policy; or

(b)

New Zealand’s international relations.

90B Powers of New Zealand Security Intelligence Service acting under removal warrant

The Director-General of Security, or an employee of the New Zealand Security Intelligence Service authorised by the Director-General for that purpose, may exercise any of the following powers to give effect to the removal warrant:

(a)

enter the place, vehicle, or thing that the device or equipment to be removed under the warrant is in or on:

(b)

take possession of any vehicle or thing that the device or equipment to be removed under the warrant is in or on:

(c)

search any place, vehicle, or thing that the device or equipment to be removed under the warrant is in or on:

(d)

remove a tracking device:

(e)

open (by any means) or interfere with a vehicle, container, receptacle, or other thing:

(f)

bring into and use in or on a place, vehicle, or other thing referred to in any of paragraphs (a) to (c) any equipment:

(g)

use any equipment found in or on a place, vehicle, or thing referred to in any of paragraphs (a) to (c):

(h)

extract and use, in the course of giving effect to the removal warrant, any electricity from a place or thing:

(i)

use any force in respect of any property or thing that is reasonable for the purpose of giving effect to the removal warrant:

(j)

do any act that is reasonable in the circumstances and reasonably required to conceal the fact that anything has been done under the warrant and to keep the activities of the intelligence and security agency covert:

(k)

do any other act that is reasonable in the circumstances and reasonably required to achieve the purposes for which the warrant was issued.

Compare: 1969 No 24 s 4I(2)

Subpart 3Incidentally-obtained intelligence

91 Retention of incidentally-obtained intelligence

(1)

The Director-General of an intelligence and security agency may retain any incidentally-obtained intelligence that comes into the possession of the agency only for the purpose of disclosing it to a person specified in subsection (2) in the circumstances specified in subsection (3).

(2)

The persons are

(a)

any employee of the New Zealand Police:

(b)

any member of the New Zealand Defence Force:

(c)

any employee of the other intelligence and security agency:

(d)

any public authority (whether in New Zealand or overseas) that the Director-General considers should receive the information.

(3)

The circumstances are that the Director-General has reasonable grounds to believe that the disclosure of the intelligence to a person specified in subsection (2) may assist in

(a)

preventing or detecting serious crime in New Zealand or any other country:

(b)

preventing or responding to threats to the life of any person in New Zealand or any other country:

(c)

identifying, preventing, or responding to threats or potential threats to the security or defence of New Zealand or any other country:

(d)

preventing or avoiding loss of life of any person who is outside the territorial jurisdiction of any country.

Compare: 2003 No 9 s 25

Subpart 3APractice warrants

91 Types of practice warrant

There are 2 types of practice warrants:

(a)

testing warrants:

(b)

training warrants.

91A Testing warrant

A testing warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity that is necessary to test, maintain, or develop the capability of the agency in relation to the performance of its statutory functions.

91B Training warrant

A training warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity that is necessary to train employees in relation to the performance of the agency’s statutory functions.

91C Application for issue of practice warrant

(1)

An application for a practice warrant must be made in writing by the Director-General of an intelligence and security agency to

(a)

the Minister responsible for the intelligence and security agency; and

(b)

the Chief Commissioner of Intelligence Warrants.

(2)

An application for the issue of a practice warrant must set out

(a)

the type of practice warrant applied for; and

(b)

details of the activity proposed to be carried out under the practice warrant; and

(c)

the purpose of the proposed activity; and

(d)

the reasons why the criteria for issuing the practice warrant set out in section 91D are believed to be satisfied.

91D Criteria for issue of practice warrant

The criteria for the issue of a practice warrant are

(a)

the carrying out of the otherwise unlawful activity (the proposed activity) by an intelligence and security agency is reasonably necessary to ensure that the agency will be able to competently perform its statutory functions in the future; and

(b)

the proposed activity is proportionate to the purpose for which it is to be carried out; and

(c)

the purpose of the proposed activity cannot reasonably be achieved by a less intrusive means; and

(d)

there are satisfactory arrangements in place to ensure that

(i)

all reasonably practicable steps will be taken to minimise the impact of the proposed activity on any members of the public; and

(ii)

nothing will be done in reliance on the practice warrant beyond what is necessary and reasonable to achieve the purpose of the proposed activity; and

(iii)

any information obtained in reliance on the practice warrant will be retained only for so long as is necessary to achieve the purpose of the proposed activity.

91E Issue of practice warrant

(1)

A practice warrant is issued to the Director-General of an intelligence and security agency.

(2)

A practice warrant is issued jointly by

(a)

the Minister responsible for the intelligence and security agency; and

(b)

a Commissioner of Intelligence Warrants.

91F Minister of Foreign Affairs to be consulted in relation to issue of practice warrants in certain cases

The Minister responsible for an intelligence and security agency making an application under section 91C must consult the Minister of Foreign Affairs before a practice warrant is issued authorising any activity that is likely to have implications for

(a)

New Zealand’s foreign policy; or

(b)

New Zealand’s international relations.

91G Practice warrants may be issued subject to restrictions or conditions

A practice warrant may be issued subject to any restrictions or conditions that are considered desirable in the public interest.

91H Term of practice warrant

(1)

A practice warrant must specify a period not exceeding 12 months during which it is valid.

(2)

The expiry of a practice warrant does not prevent a further application for a practice warrant in relation to the same activity.

91I Matters to be stated in practice warrant

A practice warrant must state

(a)

the type of warrant issued; and

(b)

the Director-General to whom the warrant is issued; and

(c)

the activity authorised to be carried out; and

(d)

any conditions or restrictions imposed under section 91G; and

(e)

the term of the warrant; and

(f)

the date on which the warrant was issued.

91J Authorised activities

A practice warrant may authorise the carrying out of 1 or more of the activities specified in section 63(1)(a) to (f) that would otherwise be unlawful.

91K Powers of New Zealand Security Intelligence Service acting under practice warrant

(1)

The Director-General of the New Zealand Security Intelligence Service, or an employee of that intelligence and security agency authorised by the Director-General for that purpose, may exercise any of the powers in section 65(1)(b) to (l) to give effect to a practice warrant.

(2)

Subsection (1) applies subject to any restrictions or conditions imposed under section 91G stated in the practice warrant.

91L Powers of Government Communications Security Bureau acting under practice warrant

(1)

The Director-General of the Government Communications Security Bureau, or an employee of that intelligence and security agency authorised by the Director-General for that purpose, may exercise any of the powers in section 66 to give effect to a practice warrant.

(2)

Subsection (1) applies subject to any restrictions or conditions imposed under section 91G stated in the practice warrant.

91M Report on practice warrant activities

As soon as practicable after the expiry or revocation of a practice warrant, the Director-General of an intelligence and security agency must provide details of all authorised activities carried out under the warrant to

(a)

the Minister responsible for the intelligence and security agency; and

(b)

the Inspector-General.

Subpart 3BUnauthorised, irrelevant, and incidentally obtained information

91N Destruction of unauthorised information

(1)

In this section, unauthorised information means

(a)

information unintentionally collected that is outside the scope of

(i)

an authorisation; or

(ii)

an authorised activity; or

(b)

information collected during the provision of co-operation, advice, and assistance under section 17 that could otherwise only be collected during the carrying out of an authorised activity.

(2)

Unauthorised information must be destroyed immediately after collection unless,

(a)

on an application that is made as soon as practicable, an intelligence warrant is issued authorising collection of the information; or

(b)

section 91P applies.

91O Destruction of irrelevant information

(1)

In this section, irrelevant information means information that

(a)

is collected by an intelligence and security agency within the scope of an authorised activity; but

(b)

is not required, or is no longer required, by the agency for the performance of its functions.

(2)

Irrelevant information must be destroyed as soon as practicable.

(3)

Subsection (2) is subject to

(a)

any enactment requiring the retention of the information; or

(b)

any order of a court that imposes a prohibition on the destruction of the information.

91P Retention of incidentally obtained information

(1)

The Director-General of an intelligence and security agency may retain any incidentally obtained information that comes into the possession of the agency only for the purpose of disclosing it to a person specified in subsection (2) in the circumstances specified in subsection (3).

(2)

The persons are

(a)

any employee of the New Zealand Police:

(b)

any member of the New Zealand Defence Force:

(c)

any public authority (whether in New Zealand or overseas) that the Director-General considers should receive the information.

(3)

The circumstances are that the Director-General has reasonable grounds to believe that the disclosure of the information to a person specified in subsection (2) may assist in

(a)

preventing or detecting serious crime in New Zealand or any other country:

(b)

preventing or responding to threats to the life of any person in New Zealand or any other country:

(c)

identifying, preventing, or responding to threats or potential threats to the security or defence of New Zealand or any other country:

(d)

preventing the death of any person who is outside the territorial jurisdiction of any country.

Compare: 2003 No 9 s 25

Return of physical items seized

91Q Physical items seized to be returned after search or analysis

(1)

A physical item seized under an intelligence warrant may be retained by an intelligence and security agency only for as long as is reasonably necessary to enable the agency to conduct a search or analysis of the item.

(2)

The physical item must then be returned to

(a)

the place from which it was seized; or

(b)

the person from whom it was seized.

(3)

However, subsection (2) does not apply if

(a)

the return of the item would undermine the ability of the agency to maintain the secrecy of the search and seizure; or

(b)

the person from whom the item was seized was not lawfully entitled to possession of the item; or

(c)

the item was unlawfully in the place from which it was seized or was being used unlawfully in the place from which it was seized; or

(d)

the person from whom the item was seized cannot be found.

Subpart 3COffences and immunities

91R Offence to provide false or misleading information

(1)

A Director-General of an intelligence and security agency who makes a warrant application that contains any false or misleading information commits an offence and is liable on conviction to imprisonment for a term not exceeding 1 year.

(2)

It is a defence to a charge under subsection (1) that the Director-General of an intelligence and security agency to whom the charge relates did not know that he or she was providing false or misleading information and had exercised all reasonable care and due diligence to ensure that the information provided was not false or misleading.

(3)

In this section, warrant application means an application for the issue of any of the following:

(a)

an intelligence warrant (including the urgent issue of an intelligence warrant):

(b)

an authorisation given under section 77(2)(a):

(c)

a removal warrant:

(d)

a practice warrant.

91S Failure to destroy information

A person commits an offence and is liable on conviction to a fine not exceeding $10,000 if the person knowingly fails to comply with

(a)

section 74:

(b)

section 80:

(c)

section 91N.

Compare: 1969 No 24 ss 4G(3), 4IB(11), 4IE(11); 2003 No 9 s 23(2)

91T Unlawful use or disclosure of information

(1)

A person carrying out an authorised activity must not, other than in the performance or exercise of the person’s functions, duties, or powers or with the consent of the relevant Minister,

(a)

disclose to any other person that the activity is an authorised activity; or

(b)

use any information obtained from the carrying out of the authorised activity; or

(c)

disclose to any other person any information obtained from the carrying out of the authorised activity.

(2)

A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding $10,000.

(3)

In this section, relevant Minister means the Minister responsible for the intelligence and security agency authorised to carry out the activity.

Compare: 1969 No 24 s 12A(1), (2), (4)

91U Unlawful disclosure of acquired information

(1)

A person who acquires knowledge of any information knowing that it was gained from the carrying out of an authorised activity must not knowingly disclose that information otherwise than in the performance or exercise of his or her functions, duties, or powers.

(2)

A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding $10,000.

Compare: 1969 No 24 s 12A(3), (4)

91V Immunities from criminal liability in relation to obtaining intelligence warrant

(1)

An employee is immune from criminal liability for any act done in good faith to obtain an intelligence warrant if

(a)

the employee reasonably believed that the act was necessary to obtain the warrant; and

(b)

the carrying out of the activity was done in a reasonable manner.

(2)

Subsection (1) applies even if the intelligence warrant is subsequently

(a)

revoked; or

(b)

determined to have been invalidly issued or given.

(3)

Subsection (2)(b) is to avoid doubt.

(4)

Subsection (1) does not apply if an employee is charged with an offence under section 91R.

91W Immunities from criminal liability in relation to carrying out authorised activity

(1)

A person is immune from criminal liability for any act done in good faith in carrying out an authorised activity if

(a)

the person reasonably believed that doing the act was necessary to carry out the activity; and

(b)

the carrying out of the activity was done in a reasonable manner.

(2)

Subsection (1) applies even if the authorisation is subsequently

(a)

revoked; or

(b)

determined to have been invalidly issued or given.

(3)

Subsection (2)(b) is to avoid doubt.

Subpart 4—Commissioners of Intelligence Warrants

92 Appointment of Commissioners

(1)

The Governor-General must, on the recommendation of the Prime Minister, appoint up to 3 persons as Commissioners of Intelligence Warrants.

(2)

The Governor-General must, on the recommendation of the Prime Minister, appoint 1 Commissioner of Intelligence Warrants as the Chief Commissioner of Intelligence Warrants.

(3)

Before recommending an appointment under this section, the Prime Minister must—

(a)

consult the Leader of the Opposition about the proposed appointment; and

(b)

advise the Governor-General that the Leader of the Opposition has been consulted.

Compare: 1969 No 24 s 5A(1), (2)

93 Eligibility for appointment

A person may only be appointed a Commissioner of Intelligence Warrants only if that person has previously held office as a Judge of the High Court.

Compare: 1969 No 24 s 5A(3)

94 Functions of Commissioners

The functions of a Commissioner of Intelligence Warrants are—

(a)

to advise the Attorney-General authorising Minister on applications under section 53 for Type 1 intelligence warrants:

(b)

to consider with the Attorney-General authorising Minister applications under section 53 for Type 1 intelligence warrants:

(c)

to deliberate with the Attorney-General authorising Minister on applications under section 53 for Type 1 intelligence warrants:

(d)

to issue Type 1 intelligence warrants under section 55 55A or 55B jointly with the Attorney-General authorising Minister:

(e)

to consider with the Attorney-General authorising Minister applications made under section 112 seeking permission to access restricted information:

(ea)

to consider with the responsible Minister applications made under section 118E for an approval to obtain business records:

(f)

to conduct reviews under section 56 of the Telecommunications (Interception Capability and Security) Act 2013 relating to significant network security risks:

(g)

to conduct reviews under section 27GF of the Passports Act 1992 relating to decisions to refuse to issue, or to cancel or retain possession of, a New Zealand travel document:

(h)

to perform any other functions conferred or imposed on a Commissioner of Intelligence Warrants by or under this Act or any other Act enactment.

Compare: 1969 No 24 s 5A(5)(a)–(d), (g)

95 Additional functions of Chief Commissioner of Intelligence Warrants

The Chief Commissioner of Intelligence Warrants has the following additional functions:

(a)

to be the central point of contact for all communications with the Commissioners of Intelligence Warrants:

(b)

to receive all applications for a Type 1 intelligence warrant:

(c)

to allocate an application for a Type 1 intelligence warrant to himself or herself or to another Commissioner of Intelligence Warrants:

(d)

to receive notice under section 69(3)(a) of the issue of a Type 1 intelligence warrant by the Attorney-General authorising Minister and consider whether to revoke it:

(e)

to receive notice under section 78(1)(a) of an authorisation given under section 77(2)(a) and consider whether to revoke it:

(ea)

to receive all applications for an approval under section 118C:

(eb)

to allocate an application for an approval under section 118C to himself or herself or to another Commissioner of Intelligence Warrants for consideration:

(f)

to perform any other functions conferred or imposed on the Chief Commissioner of Intelligence Warrants by or under this Act or any other enactment.

95A Delegation of functions of Chief Commissioner of Intelligence Warrants

(1)

The Chief Commissioner of Intelligence Warrants (the Chief Commissioner) must ensure that an appropriate delegation is at all times in place under this section to enable another Commissioner of Intelligence Warrants (a delegate) to act in place of the Chief Commissioner during

(a)

any absence or incapacity of the Chief Commissioner; or

(b)

any vacancy in the office of the Chief Commissioner.

(2)

A delegation under this section

(a)

must be in writing; and

(b)

is revocable at any time, by notice in writing.

(3)

A delegate may perform the functions of the Chief Commissioner in the same manner and with the same effect as if those functions had been conferred directly on him or her by this Act.

(4)

A delegate who purports to act under a delegation is, in the absence of proof to the contrary, presumed to be acting in accordance with the delegation.

(5)

A delegation, until it is revoked, continues to have effect even if the Chief Commissioner by whom it was made ceases to hold office.

96 Administrative provisions relating to Commissioners

Part 1 of Schedule 3 applies in relation to the Commissioners of Intelligence Warrants.

Part 5 Accessing information held by other agencies

97 Interpretation

In this Part, unless the context otherwise requires,—

access, in relation to a database, means to do either or both of the following (whether remotely or otherwise):

(a)

search the database:

(b)

copy any information stored on the database (including by previewing, cloning, or other forensic methods)

agency

(a)

means any person, whether in the public sector or the private sector; and

(b)

includes a department

citizenship information means information that relates to the acquisition or loss of citizenship by, or to the citizenship status of, any person

database means the information recording system or facility used by a holder agency to store information

database

(a)

means the information recording system or facility used by a holder agency to store information; and

(b)

includes any system for transferring or processing information into or out of, or within, that information recording system or facility

direct access, in relation to a database, means to do either or both of the following (whether remotely or otherwise):

(a)

search the database:

(b)

copy any information stored on the database (including by previewing, cloning, or other forensic methods)

holder agency means an agency specified in the first third column of the table in Schedule 2

information means personal information and non-personal information

non-personal information means information that is not personal information

personal information means information about an identifiable individual

responsible Minister,

(a)

in relation to an intelligence and security agency, means the Minister responsible for the intelligence and security agency; and

(b)

in relation to the intelligence and security agencies, means

(i)

the Minister responsible for the intelligence and security agencies, if the same Minister is responsible for each agency; and

(ii)

the Ministers responsible for the intelligence and security agencies, if a different Minister is responsible for each agency.

98 Relationship between this Part and other law relating to information disclosure

This Part does not limit the collection, use, or disclosure of personal information that—

(a)

is authorised or required by or under any enactment; or

(b)

is permitted by the information privacy principles in section 6 of the Privacy Act 1993.

Subpart 1—Request and disclosure of information

99 Purpose of subpart

The purpose of this subpart is—

(a)

to recognise—

(i)

the existing ability of an intelligence and security agency to request information held by other agencies; and

(ii)

the existing ability of an agency to disclose information that it holds to an intelligence and security agency; but

(b)

not to confer on an agency any legal right or obligation.

100 Requests for information

(1)

The Director-General of an intelligence and security agency may request information from any other agency if the Director-General considers that access to believes on reasonable grounds that the information is required necessary to enable the intelligence and security agency to perform or exercise a function, duty, or power any of its statutory functions.

(2)

A request must—

(a)

provide details of the information requested; and

(b)

confirm that access to the information is required necessary to enable the intelligence and security agency to perform or exercise a function, duty, or power any of its statutory functions.

101 Disclosure of information to intelligence and security agency

(1)

An agency may disclose to an intelligence and security agency any information that it holds or controls if it is satisfied believes on reasonable grounds that the disclosure of information is required by necessary to enable the intelligence and security agency to perform or exercise a function, duty, or power any of its statutory functions.

(2)

An agency may disclose the information either—

(a)

on the request of an intelligence and security agency; or

(b)

on its own initiative.

(2A)

For the purpose of enabling an agency to decide whether to disclose any information under subsection (1) (including the application of section 6 of the Privacy Act 1993), the Director-General of an intelligence and security agency may certify that he or she believes on reasonable grounds that the disclosure of the information is necessary for the performance of any of the agency’s statutory functions.

(3)

This section is subject to—

(a)

a provision contained in any other Act that—

(i)

imposes a prohibition or restriction in relation to the disclosure of the information (for example, in relation to personal information, information privacy principle 11 in section 6 of the Privacy Act 1993); or

(ii)

regulates the manner in which the information may be obtained or made available (for example, section 236 of the Land Transport Act 1998); and

(i)

prohibits or restricts the disclosure of the information to an intelligence and security agency; or

(ii)

regulates the manner in which the information may be obtained or made available to an intelligence and security agency; or

(b)

a provision contained in any contract, agreement, or other document relating to the disclosure of the information; and

(c)

any obligation of confidence.

Register of section 101 certificates

101A Register of section 101 certificates

(1)

The Director-General of an intelligence and security agency must keep a register of all certificates issued by him or her under section 101(2A) (a section 101 certificate).

(2)

The register must include, for each section 101 certificate issued, details of

(a)

the date on which the certificate was issued; and

(b)

the agency to which the certificate was issued; and

(c)

the information to which the certificate relates; and

(d)

the circumstances in which the certificate was issued.

(3)

The register may be accessed at any time by

(a)

the Minister responsible for the intelligence and security agency:

(b)

the Inspector-General.

Subpart 2—Direct access to database information

102 Purpose of subpart

The purpose of this subpart is to enable an intelligence and security agency to have direct access to databases storing specified public sector information.

103 Direct access to certain information

(1)

A holder agency must allow the Director-General of an intelligence and security agency access to any database storing the information held by the holder agency specified in the second column of the table in Schedule 2 opposite the name of that holder agency.

(1)

An intelligence and security agency specified in the first column of Schedule 2 may have direct access to the information specified in the second column of Schedule 2 that is opposite its name and held by the holder agency specified in the third column of Schedule 2.

(2)

However, that access must be in accordance with a written direct access agreement entered into between—

(a)

the Minister responsible for the holder agency; and

(b)

the Minister responsible for the intelligence and security agency.

104 Matters to which Ministers must have regard before entering into direct access agreement

Before entering into a direct access agreement, the Ministers referred to in section 103(2) must be satisfied that—

(a)

direct access to the information is necessary to enable the intelligence and security agency to perform or exercise a function, duty, or power any of its statutory functions; and

(b)

there are adequate safeguards to protect the privacy of individuals, including whether that the proposed compliance and audit requirements for the direct access, use, disclosure, and retention of the information are sufficient; and

(c)

the agreement will include appropriate procedures for direct access, use, disclosure, and retention of the information.

105 Consultation on direct access agreement

Before entering into a direct access agreement, or varying an agreement, the Ministers referred to in section 103(2) must

(a)

consult

(i)

the Privacy Commissioner; and

(ii)

the Inspector-General; and

(b)

have regard to any comments received from

(i)

the Privacy Commissioner; and

(ii)

the Inspector-General.

105 Consultation with Privacy Commissioner before entering into direct access agreement

(1)

Before entering into a direct access agreement, the Ministers referred to in section 103(2) must consult with, and invite comment from, the Privacy Commissioner on the proposed agreement.

(2)

When consulted on a direct access agreement, the Privacy Commissioner must have particular regard to the matters that the Ministers need to be satisfied of before entering into the agreement that are specified in section 104(b) and (c).

(3)

The Ministers must have regard to any comments received from the Privacy Commissioner on the proposed agreement.

105A Consultation with Inspector-General before entering into direct access agreement

(1)

Before entering into a direct access agreement, the Ministers referred to in section 103(2) must also consult with, and invite comment from, the Inspector-General on the proposed agreement.

(2)

The Ministers must have regard to any comments received from the Inspector-General on the proposed agreement.

106 Content of direct access agreements

An agreement must specify—

(a)

the database or databases that may be accessed:

(b)

the particular information that may be accessed:

(ba)

the particular purpose or purposes for which the information may be accessed:

(c)

the particular function, duty, or power being, or to be, performed or exercised by the intelligence and security agency for which the information is required:

(d)

the mechanism by which the information is to be accessed:

(e)

the position held by the person or persons in the intelligence and security agency who may access the information:

(f)

the records to be kept in relation to each occasion on which a database is accessed:

(g)

the safeguards that are to be applied for protecting particular information (for example, personal information or information that is commercially sensitive information):

(h)

the requirements relating to storage, retention, and disposal of information obtained from the database or databases:

(i)

the circumstances (if any) in which the information may be disclosed to another agency (whether in New Zealand or overseas), and how that disclosure may be made:

(j)

the appointment apportionment of the costs incurred by the holder agency and the intelligence and security agency under the agreement.

106A Variation of direct access agreement

Sections 104, 105, and 105A apply with any necessary modifications in respect of a proposal to enter into an agreement varying a direct access agreement.

107 Publication of direct access agreements

(1)

An agreement, and all variations to the agreement, must be published on—

(a)

an Internet site maintained by or on behalf of the holder agency; and

(b)

an Internet site maintained by or on behalf of the relevant intelligence and security agency.

(2)

However, subsection (1) does not apply to—

(a)

an agreement or a variation of an agreement that may be withheld on a request under the Official Information Act 1982:

(b)

a provision of an agreement that may be withheld on a request under the Official Information Act 1982.

(3)

If, in reliance on subsection (2)(a), an agreement or a variation of an agreement is not published, a summary of the agreement must be published on—

(a)

an Internet site maintained by or on behalf of the holder agency; and

(b)

an Internet site maintained by or on behalf of the relevant intelligence and security agency.

108 Review of agreements

(1)

The Ministers who have entered into an agreement must review the agreement every 3 years.

(2)

In conducting a review, the Ministers must—

(a)

consult—

(i)

the Privacy Commissioner; and

(ii)

the Inspector-General; and

(b)

have regard to any comments received from—

(i)

the Privacy Commissioner; and

(ii)

the Inspector-General.

109 Amendment of Schedule 2

(1)

The Governor-General may, by Order in Council made on the recommendation of the relevant Minister given after consultation with the Intelligence and Security Committee,

(a)

add, remove, amend, or replace any item in Schedule 2; or

(b)

repeal Schedule 2 and substitute a new schedule.

(2)

In this section, relevant Minister means,

(a)

if only 1 intelligence and security agency is affected, or likely to be affected, by the proposed Order in Council, the Minister responsible for that agency:

(b)

if both intelligence and security agencies are affected, or likely to be affected, by the proposed Order in Council, the Minister or Ministers responsible for those agencies.

109A Relationship between subpart and other law

This subpart does not prevent or limit any disclosure of information that may be required or authorised by or under

(a)

any other provision of this Act; or

(b)

any other enactment.

Subpart 3—Access to restricted information

110 Purpose of subpart

The purpose of this subpart is to enable an intelligence and security agency to access restricted information.

111 Meaning of restricted information

In this subpart, restricted information means—

(a)

information that an Inland Revenue officer must maintain, and must assist in maintaining, the secrecy of under section 81 of the Tax Administration Act 1994:

(b)

information relating to national student numbers assigned to students by the Secretary of Education under section 343 of the Education Act 1989 to students enrolled with a tertiary education provider:

(ba)

information relating to an adoption held by the Registrar-General appointed under section 79(1) of the Births, Deaths, Marriages, and Relationships Registration Act 1995:

(c)

photographic images used for driver licences that are stored under section 28(5) of the Land Transport Act 1998.

112 Application for permission to access restricted information

(1)

The Director-General of an intelligence and security agency seeking access to restricted information in relation to a person must apply for permission.

(2)

An application for permission must be made to—

(a)

the Attorney-General responsible Minister and the Chief Commissioner of Intelligence Warrants, if the person is—

(i)

a New Zealand citizen; or

(ii)

a permanent resident of New Zealand; or

(b)

the Attorney-General responsible Minister, if the person is not—

(i)

a New Zealand citizen; or

(ii)

a permanent resident of New Zealand.

(3)

An application must state the particular restricted information to which access is sought.

113 Permission to access restricted information granted on application made under section 112(2)(a)

The Attorney-General responsible Minister and a Commissioner of Intelligence Warrants may grant an application made under section 112(2)(a) and permit access to specified restricted information if they are satisfied—

(a)

that—

(i)

access to the restricted information will is necessary to contribute to the objective in section 11(a) protection of national security and to assist in protecting against any of the harms specified in section 55A(2); and

(ii)

the further criteria in section 115 are met; or

(b)

that—

(i)

access to the restricted information will contribute to achieving the objective in section 11(b) or (c); and

(ii)

there is a reasonable suspicion are reasonable grounds to suspect that the person referred to in section 112(2)(a) is acting, or purporting to act, for or on behalf of—

(A)

a foreign person; or

(B)

a foreign organisation; or

(C)

a designated terrorist entity; and

(iii)

the further criteria in section 115 are met.

114 Permission to access restricted information granted on application made under section 112(2)(b)

The Attorney-General responsible Minister may grant an application made under section 112(2)(b) and permit access to specified restricted information if the Attorney-General responsible Minister is satisfied—

(a)

that access to the restricted information will contribute to achieving 1 or more of the objectives specified in section 11; and

(b)

the further criteria in section 115 are met.

115 Further criteria for permitting access to restricted information

The further criteria for permitting access to restricted information referred to in sections 113 and 114 are that—

(a)

access to the restricted information is necessary for the purpose of enabling the intelligence and security agency to perform any of its functions under an enactment; and

(b)

the privacy impact of permitting access is proportionate to that purpose; and

(c)

the restricted information cannot be accessed by any other means.

116 Permission must specify restricted information that may be accessed

A permission given under section 113 or 114 must specify the particular restricted information that the intelligence and security agency may access.

117 Access to restricted information must be provided if permitted

An agency must provide to the Director-General of an intelligence and security agency named in the permission access to any restricted information specified in the permission if that information is held by or is within the control of that agency.

118 Use, retention, and disclosure of restricted information

Restricted information accessed by an intelligence and security agency may be used, retained, and disclosed by the intelligence and security agency only in the performance of its functions.

Subpart 4Obtaining business records of telecommunications network operators and financial service providers

118A Purpose of subpart

The purpose of this subpart is to enable an intelligence and security agency to obtain business records of telecommunications network operators and financial service providers.

118B Interpretation

In this subpart, unless the context otherwise requires,

approval means an approval given under section 118E to obtain business records from business agencies

business agencies means

(a)

telecommunications network operators:

(b)

financial service providers

business records means,

(a)

in relation to a business agency that is a telecommunications network operator, all information in the possession or under the control of the telecommunications network operator that is generated or received in the course of the operator’s business,

(i)

including

(A)

customer information (for example, names and contact details):

(B)

subscriber information (for example, names and contact details):

(C)

bank account number details:

(D)

credit card number details:

(E)

IP addresses:

(F)

billing information and records:

(G)

call associated data (within the meaning of section 3(1) of the Telecommunications (Interception Capability and Security) Act 2013):

(H)

device-related information:

(I)

details of mobile data usage:

(J)

information on linked accounts:

(K)

details of any persons communicating with the network operator; but

(ii)

excluding

(A)

personal information about the network operator’s employees and directors:

(B)

the content of telecommunications:

(C)

any information relating to the business operations of the network operator (including finances, budgets, plans, and strategies):

(D)

the content of any other communications or files held by the network operator in providing any service to a customer (for example, cloud storage servers or insurance):

(E)

web browsing history:

(b)

in relation to a business agency that is a financial service provider, all information in the possession or under the control of the financial service provider that is generated or received in the course of the provider’s business,

(i)

including

(A)

customer information (for example, names and contact details):

(B)

bank account number details:

(C)

credit card number details:

(D)

statement and account information:

(E)

transaction information and other information related to a specific account; but

(ii)

excluding

(A)

personal information about the provider’s employees and directors:

(B)

the content of communications:

(C)

any information relating to the business operations of the financial service provider (including finances, budgets, plans, and strategies):

(D)

the content of any other communications or files held by the financial service provider in providing any service to a customer (for example, cloud storage servers or insurance)

business records direction means a direction issued under section 118G

financial service provider has the meaning given to it by section 4 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008

telecommunication has the meaning given to it by section 5 of the Telecommunications Act 2001

telecommunications network operator means a network operator, as defined in section 3(1) of the Telecommunications (Interception Capability and Security) Act 2013.

Approval to obtain business records

118C Application for approval to obtain business records

(1)

The Director-General of an intelligence and security agency may apply for an approval to obtain business records from business agencies under business records directions.

(2)

An application for an approval must be made to

(a)

the responsible Minister; and

(b)

the Chief Commissioner of Intelligence Warrants.

(3)

An application must be in writing and state

(a)

a description of the circumstances giving rise to the need to rely on the approval to issue business records directions to obtain business records; and

(b)

the business records or class of business records sought to be obtained under each business records direction issued under the approval (including, to avoid doubt, the time period to which those records or classes of records relate); and

(c)

the function under section 13, 14, or 17 that the intelligence and security agency would be performing in those circumstances; and

(d)

that applying for an intelligence warrant to obtain the business records is likely to be impractical in those circumstances, or the reason why it would otherwise not be appropriate in those circumstances to apply for an intelligence warrant to obtain the business records.

118D Joint application for approval

The Director-General of Security and the Director-General of the Government Communications Security Bureau may jointly apply for an approval.

118E Approval to obtain business records

(1)

An application for an approval to obtain business records from business agencies is granted jointly by

(a)

the responsible Minister; and

(b)

a Commissioner of Intelligence Warrants.

(2)

An application for an approval may be granted to the Director-General of an intelligence and security agency if the responsible Minister and a Commissioner of Intelligence Warrants are satisfied that

(a)

obtaining business records from business agencies in the circumstances stated in the application is necessary to enable the intelligence and security agency to perform a function under section 13, 14, or 17; and

(b)

the privacy impact of obtaining the business records in those circumstances does not outweigh the importance of performing that function; and

(c)

it would not be more appropriate for the Director-General to apply for the issue of an intelligence warrant authorising the seizing of the business records; and

(d)

there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the approval beyond what is necessary and reasonable for the proper performance of a function of an intelligence and security agency; and

(e)

there are satisfactory arrangements in place to ensure that any information collected in reliance on the approval will be retained, used, and disclosed only in accordance with this Act or any other enactment.

(3)

An approval must state

(a)

the Director-General to whom the approval is granted; and

(b)

the circumstances in which those business records may be obtained from business agencies by the issue of a business records direction under the approval; and

(c)

the business records or class of business records that the Director-General may obtain from business agencies under a business records direction; and

(d)

any restrictions or conditions to which the approval is subject; and

(e)

the date on which the approval was granted.

118F Duration of approval

(1)

An approval takes effect on the date on which it is granted and expires 6 months after that date.

(2)

The Director-General of an intelligence and security agency may, either before or after the date on which an approval expires, apply for a subsequent approval that is the same as the earlier approval.

(3)

Despite subsection (1), if an application for a subsequent approval is made before the earlier approval expires, the subsequent approval may take effect from the date on which the earlier approval expires.

118G Amendment and revocation of approvals

The responsible Minister and a Commissioner of Intelligence Warrants may

(a)

at any time amend or revoke an approval:

(b)

direct that all or any specified business records obtained under the approval before it was amended or revoked be destroyed.

Issue of business records direction

118H Director-General of intelligence and security agency may issue business records direction

(1)

The Director-General of an intelligence and security agency who has been granted an approval may issue a business records direction in writing to a named business agency requiring that agency to provide to the Director-General copies of

(a)

specified business records relating to an identifiable person or thing:

(b)

any specified class of business records relating to an identifiable person or thing.

(2)

A business records direction may only be issued by a Director-General

(a)

in respect of business records, or a class of business records, that the Director-General may obtain under a current approval; and

(b)

in the circumstances stated in the approval; and

(c)

in accordance with any restrictions or conditions stated in the approval.

(3)

Before issuing a business records direction, the Director-General of an intelligence and security agency must be satisfied that the extent of business records required to be provided under that direction is justified and is no more than is necessary to enable the performance of the agency’s statutory functions.

(4)

In this section,

current approval means an approval that has not expired

thing includes

(a)

a number (for example, a telephone number, bank account number, or credit card number); and

(b)

an address (for example, an Internet protocol address).

118I Compliance with business records direction

(1)

A business agency to which a business records direction is issued must comply with the direction not later than 30 days after receiving it, or comply at any later time permitted by the Director-General who issued the request.

(2)

A business agency commits an offence if the agency, without reasonable excuse, fails to comply with a business records direction.

(3)

A business agency who commits an offence against subsection (2) is liable on conviction,

(a)

in the case of an individual, to imprisonment for a term not exceeding 1 year:

(b)

in the case of a body corporate, to a fine not exceeding $40,000.

(4)

Subsection (1) applies despite the expiry of the approval under which the direction was issued.

Compare: 2012 No 24 s 174

118J Business records to be destroyed if not required by intelligence and security agency

(1)

All business records obtained by a Director-General of an intelligence and security agency under a business records direction must be destroyed as soon as practicable if the records are not required, or are no longer required, by the agency for the performance of its functions.

(2)

Subsection (1) is subject to

(a)

any enactment requiring the retention of the information contained in the business records; or

(b)

any order of a court that imposes a prohibition on the destruction of the information contained in the business records.

Register of business records directions

118K Register of business records directions

(1)

The Director-General of an intelligence and security agency must keep a register of all business records directions issued by him or her.

(2)

The register must include, for each business records direction issued, details of

(a)

the approval under which the direction was issued; and

(b)

the date on which the direction was issued; and

(c)

the business agency to whom the direction was issued; and

(d)

the circumstances in which the direction was issued; and

(e)

the statutory function being performed by the intelligence and security agency to which the direction relates; and

(f)

the business records or class of business records sought to be obtained under the direction; and

(g)

the date on which the business agency complied with the direction.

(3)

The register may be accessed at any time by

(a)

the Minister responsible for the intelligence and security agency:

(b)

the Inspector-General.

118L Subpart does not create any new obligation to create or maintain records

Nothing in this subpart requires a financial service provider or a telecommunications network operator to create information or maintain a record of information that would not, apart from this subpart, have been created or maintained.

Relationship with other law

118M Relationship between subpart and other law

This subpart does not prevent or limit the disclosure of business records to an intelligence and security agency that may be required, authorised, or permitted by or under

(a)

any other provision of this Act; or

(b)

any other enactment.

Part 6 Oversight of intelligence and security agencies

119 Purpose of Part

(1)

The purpose of this Part is to provide for the independent oversight of intelligence and security agencies to ensure that those agencies are operating act with propriety and operate lawfully and effectively.

(2)

To achieve this purpose,—

(a)

the office of the Inspector-General of Intelligence and Security is continued, with the Inspector-General having functions, duties, and or powers to—

(i)

ensure that the intelligence and security agencies conduct their activities lawfully and with propriety:; and

(ii)

receive certain types of complaints about the agencies:

(iii)

conduct inquiries relating to the agencies:

(ii)

ensure that complaints relating to the intelligence and security agencies are independently investigated; and

(iv)

advise the Government and the Intelligence and Security Committee on matters relating to the oversight of the agencies:

(b)

the Intelligence and Security Committee is continued to provide parliamentary scrutiny of the policies, administration, and expenditure of the intelligence and security agencies.

Subpart 1—Inspector-General of Intelligence and Security

Appointment, functions, duties, and powers of Inspector-General

120 Appointment of Inspector-General

(1)

There continues to be an office called the Inspector-General of Intelligence and Security.

(2)

The Inspector-General is appointed by the Governor-General on the recommendation of the House of Representatives.

(3)

Before a recommendation may be made under subsection (2), the Prime Minister must—

(a)

consult the Intelligence and Security Committee about the proposed appointment; and

(b)

advise the House of Representatives that the Intelligence and Security Committee has been consulted on the outcome of that consultation.

(4)

The Inspector-General must hold a Government-sponsored security clearance of a level determined by the Prime Minister.

Compare: 1996 No 47 s 5(1)(a), (2)

121 Functions of Inspector-General

(1)

The functions of the Inspector-General are—

(a)

to conduct an inquiry into any matter relating to an intelligence and security agency’s compliance with New Zealand law, including human rights law, if that inquiry is requested by—

(i)

the Minister responsible for the intelligence and security agency; or

(ii)

the Intelligence and Security Committee:

(b)

to conduct an inquiry into any matter where it appears that a New Zealand person has been or may be adversely affected by an act, omission, practice, policy, or procedure of an intelligence and security agency, if that inquiry is requested by—

(i)

the Minister responsible for the intelligence and security agency; or

(ii)

the Intelligence and Security Committee:

(c)

to conduct an inquiry into the propriety of particular activities of an intelligence and security agency, if that inquiry is requested by—

(i)

the Minister responsible for the intelligence and security agency; or

(ii)

the Intelligence and Security Committee; or

(iii)

the Prime Minister:

(d)

to conduct an inquiry of the type referred to in paragraph (a), (b), or (c) on the Inspector-General’s own initiative:

(e)

to deal with complaints received under section 134:

(f)

to conduct reviews, at intervals of not more than 12 months, of the effectiveness and appropriateness of—

(i)

the procedures of each intelligence and security agency to ensure compliance with this Act in relation to the issue and execution of warrants an authorisation; and

(ii)

compliance systems of each intelligence and security agency for operational activity activities, including all supporting policies and practices of an intelligence and security agency relating to—

(A)

administration:

(B)

information management:

(C)

risk management:

(D)

legal compliance generally:

(fa)

to conduct a review, on the Inspector-General’s own initiative, of any activity undertaken by an intelligence and security agency in the performance of its function under section 17:

(g)

to conduct unscheduled audits of the procedures and compliance systems described in paragraph (f):

(h)

to conduct a review in relation to either or both of the following:

(i)

the issue of an authorisation; and:

(ii)

the carrying out of an activity under an authorisation authorised activity:

(ha)

to conduct a review in relation to a permission granted under section 113 or 114:

(i)

to undertake all work programmes published under section 122:

(j)

to perform any other functions conferred or imposed on the Inspector-General by or under this Act or any other enactment.

(2)

In conducting any inquiry or review, the Inspector-General must take into account—

(a)

any relevant ministerial policy statement; and

(b)

the extent to which an intelligence and security agency has had regard to that statement.

(3)

In this section, authorisation means and authorised activity have the meanings given to them by section 47.

(a)

an intelligence warrant issued under section 55, 56, 69, or 70:

(b)

an authorisation given under section 77:

(c)

a removal warrant issued under section 90:

Compare: 1996 No 47 s 11(1)(a), (c), (ca), (d), (da), (f), (3)

122 Inspector-General to prepare and publish annual work programme

(1)

At least 60 days before the beginning of each financial year, the Inspector-General must—

(a)

prepare a draft proposed work programme for that year; and

(b)

consult the Ministers on that proposed work programme.

(2)

The Inspector-General, after having regard to any comments received from the Ministers, must finalise the annual work programme.

(3)

As soon as practicable after the annual work programme is finalised, the Inspector-General—

(a)

must give a copy to the Ministers; and

(b)

may publish it on an Internet site maintained by or on behalf of the Inspector-General.

(4)

In this section, Ministers means—

(a)

the Minister responsible for the New Zealand Security Intelligence Service; and

(b)

the Minister responsible for the Government Communications Security Bureau.

Compare: 1996 No 47 s 11(1)(e)

123 Disclosures to Inspector-General or Deputy Inspector-General

(1)

This section applies if an employee of an intelligence and security agency brings any matter to the attention of the Inspector-General or Deputy Inspector-General.

(2)

The employee must not be subjected by the intelligence and security agency to any penalty or discriminatory treatment of any kind in relation to his or her employment by reason only of having brought the matter to the attention of the Inspector-General or Deputy Inspector-General.

(3)

However, subsection (2) does not apply if the Inspector-General determines that the employee did not act in good faith.

Compare: 1996 No 47 ss 5(4), 18

124 Consultation by Inspector-General

(1)

In carrying out his or her functions, the Inspector-General must have regard to the functions of the Auditor-General in relation to an intelligence and security agency and may consult the Auditor-General about any matter with a view to avoiding inquiries being conducted into that matter by both the Inspector-General and the Auditor-General.

(2)

The Inspector-General may—

(a)

consult any of the persons specified in subsection (3) about any matter relating to the functions of the Inspector-General; and

(b)

despite section 176(1), disclose to any of the persons consulted any information that the Inspector-General considers necessary for the purpose of the consultation.

(3)

The persons are—

(a)

the Auditor-General:

(b)

an Ombudsman:

(c)

the Privacy Commissioner:

(d)

a Human Rights Commissioner:

(e)

the Independent Police Conduct Authority:

(f)

the State Services Commissioner.

(4)

Nothing in this section limits the powers, duties, and responsibilities functions, duties, or powers of the Auditor-General, an Ombudsman, the Privacy Commissioner, a Human Rights Commissioner, the Independent Police Conduct Authority, or the State Services Commissioner under any enactment.

Compare: 1996 No 47 ss 12, 15(3)

125 Jurisdiction of courts and other agencies not affected

(1)

To avoid doubt, the carrying out of the Inspector-General’s functions does not limit the jurisdiction of any court.

(2)

The carrying out by the Inspector-General of his or her functions does not affect the exercise by any Police employee of any powers that the Police employee may lawfully exercise in relation to—

(a)

an intelligence and security agency; or

(b)

the Director-General or any employee of an intelligence and security agency.

Compare: 1996 No 47 s 15(1), (2)

126 Reviews relating to authorisations

(1)

If a review conducted under section 121(1)(h) identifies any irregularity in the issue of an authorisation or the carrying out of an activity authorised by the authorisation, that finding does not

(a)

invalidate the authorisation; or

(b)

invalidate any action taken by an intelligence and security agency, or any other person, in reliance on the authorisation or any intelligence collected under it; or

(c)

require the intelligence collected under the authorisation to be destroyed.

(2)

The Inspector-General may report the irregularity to

(a)

the Attorney-General and the Chief Commissioner of Intelligence Warrants, in the case of

(i)

a Type 1 intelligence warrant; or

(ii)

an authorisation given under section 77(2)(a); or

(b)

the Attorney-General, in the case of

(i)

a Type 2 intelligence warrant; or

(ii)

an authorisation given under section 77(2)(b); or

(iii)

a removal warrant.

126 Reviews relating to authorisations and authorised activities

(1)

If a review conducted under section 121(1)(h)(i) identifies any irregularity in the issue of an authorisation to an intelligence and security agency (an irregular authorisation),

(a)

the finding does not

(i)

invalidate the authorisation; or

(ii)

invalidate any action taken by the intelligence and security agency, or any other person, in reliance on the authorisation or any information collected under it; or

(iii)

require any information obtained under the authorisation to be destroyed:

(b)

the Inspector-General may report the irregular authorisation to

(i)

the Minister responsible for the intelligence and security agency and to the Chief Commissioner of Intelligence Warrants, in the case of an authorisation that

(A)

is a Type 1 intelligence warrant; or

(B)

is given under section 77(2)(a); or

(ii)

the Minister responsible for the intelligence and security agency, in the case of any other kind of authorisation.

(2)

If a review conducted under section 121(1)(h)(ii) identifies any irregularity in the carrying out of an authorised activity by an intelligence and security agency (an irregular activity),

(a)

the finding does not

(i)

invalidate the authorisation that authorised the activity; or

(ii)

make the activity unlawful; or

(iii)

require any information obtained during the carrying out of the activity to be destroyed:

(b)

the Inspector-General may report the irregular activity to

(i)

the Minister responsible for the intelligence and security agency and to the Chief Commissioner of Intelligence Warrants, in the case of an activity authorised by

(A)

a Type 1 intelligence warrant; or

(B)

an authorisation given under section 77(2)(a); or

(ii)

the Minister responsible for the intelligence and security agency, in the case of an activity authorised by any other kind of authorisation.

(3)

The Inspector-General may include in his or her report under subsection (1)(b) or (2)(b) a recommendation that all or any specified information obtained under an irregular authorisation or as a result of irregular activity be destroyed.

Appointment, functions, duties, and powers of Deputy Inspector-General

127 Appointment of Deputy Inspector-General

(1)

There continues to be an office called the Deputy Inspector-General of Intelligence and Security.

(2)

The Deputy Inspector-General is appointed by the Governor-General on the recommendation of the House of Representatives.

(3)

Before a recommendation may be made under subsection (2), the Prime Minister must—

(a)

consult the Intelligence and Security Committee about the proposed appointment; and

(b)

advise the House of Representatives that the Intelligence and Security Committee has been consulted on the outcome of that consultation.

(4)

The Deputy Inspector-General must hold a Government-sponsored security clearance of a level determined by the Prime Minister.

Compare: 1996 No 47 s 5(1)(b), (2)

128 Functions, duties, and powers of Deputy Inspector-General

(1)

The Deputy Inspector-General has and may perform or exercise, to the same extent as the Inspector-General, all the functions, duties, and powers of the Inspector-General.

(2)

The performance by the Deputy Inspector-General of the Inspector-General’s functions and duties, and the exercise by the Deputy Inspector-General of the Inspector-General’s powers, is subject to the control of the Inspector-General.

(3)

If there is a vacancy in the office of the Inspector-General, or if the Inspector-General is absent from duty for any reason, the Deputy Inspector-General has and may perform or exercise all the functions, duties, and powers of the Inspector-General for as long as the vacancy or absence continues.

(4)

The fact that the Deputy Inspector-General performs or exercises any function, duty, or power of the Inspector-General is, in the absence of evidence to the contrary, conclusive evidence of the Deputy Inspector-General’s authority to do so.

Compare: 1996 No 47 s 5(3), (5), (6)

Administrative provisions

129 Administrative provisions relating to offices of Inspector-General and Deputy Inspector-General

Part 2 of Schedule 3 applies in relation to the offices of Inspector-General and Deputy Inspector-General.

Advisory panel

130 Advisory panel

There continues to be an advisory panel.

Compare: 1996 No 47 s 15A

131 Functions of advisory panel

(1)

The functions of the advisory panel are—

(a)

to provide advice to the Inspector-General—

(i)

on request from the Inspector-General; or

(ii)

on its own initiative:

(b)

to report to the Prime Minister on any matter relating to intelligence and security if the advisory panel considers that the matter should be drawn to the attention of the Prime Minister.

(2)

To assist the advisory panel to perform its functions, the Inspector-General may on his or her own initiative, or on request, provide any information to the advisory panel.

Compare: 1996 No 37 s 15B

132 Membership of advisory panel

(1)

The advisory panel consists of 2 members appointed by the Governor-General on the recommendation of the Prime Minister made after consulting the Intelligence and Security Committee.

(2)

Both members appointed under subsection (1) must hold a Government-sponsored security clearance of a level determined by the Prime Minister.

Compare: 1996 No 47 s 15C(1)–(4)

133 Administrative provisions relating to advisory panel

Part 3 of Schedule 3 applies in relation to the membership and procedure of the advisory panel.

Complaints

134 Complaints that may be made to Inspector-General

(1)

A complaint may be made to the Inspector-General under subsection (2), (3), or (4).

(2)

A New Zealand person (not being a person referred to in subsection (3)) may complain that he or she has, or may have, been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency.

(3)

An employee, or a former employee, of an intelligence and security agency may complain that he or she has, or may have, been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency if—

(a)

all established internal remedies have been exhausted; or

(b)

the Director-General of the relevant intelligence and security agency agrees in writing.

(4)

The Speaker of the House of Representatives on behalf of 1 or more members of Parliament may complain that the House has, or may have, been adversely affected by about any act, omission, practice, policy, or procedure of an intelligence and security agency.

Compare: 1996 No 47 s 11(1)(b), (ba), (5)

135 Form of complaint

(1)

A complaint may be made orally or in writing.

(2)

A complaint made orally must be put in writing as soon as practicable.

Compare: 1996 No 47 s 16(1)

136 Procedure on receipt of complaint

(1)

As soon as practicable after receiving a complaint, the Inspector-General must consider the complaint and—

(a)

decide to conduct an inquiry into the complaint; or

(b)

decide, in accordance with section 137, not to conduct an inquiry into the complaint.

(2)

As soon as practicable after making a decision under subsection (1), the Inspector-General must advise the complainant of that decision.

Compare: 1993 No 28 s 70

137 Inspector-General may decide not to inquire or continue to inquire into complaint

(1)

The Inspector-General may decide not to conduct an inquiry into a complaint if it appears to the Inspector-General that,—

(a)

under the law or existing administrative practice, the complainant has an adequate remedy or right of appeal (other than the right to petition the House of Representatives) and it is, or would have been, reasonable for the complainant to pursue that remedy or right of appeal; or

(b)

the complaint relates to an act, omission, practice, policy, or procedure that the complainant has known about for more than 12 months; or

(c)

the subject matter of the complaint is trivial; or

(d)

the complaint is frivolous or vexatious or not made in good faith; or

(e)

the complainant does not have a sufficient personal interest in the subject matter of the complaint; or

(f)

having regard to all the circumstances of the case, and following preliminary inquiries, an inquiry is unnecessary.

(2)

The Inspector-General may decide not to continue to conduct an inquiry into a complaint if, in the course of his or her inquiries, it appears to the Inspector-General that—

(a)

having regard to all the circumstances of the case, further inquiries are unnecessary; or

(a)

any of the circumstances in subsection (1) apply; or

(ab)

having regard to all the circumstances of the case, the further conduct of the inquiry is unnecessary; or

(b)

the matter that is the subject of the complaint is one that should be heard by a court or tribunal constituted by statute.

(3)

As soon as practicable after making a decision under subsection (1) or (2), the Inspector-General must advise the complainant of that decision.

Compare: 1975 No 9 s 17; 1996 No 47 s 17

Procedure for inquiries

138 Commencing of inquiry

(1)

After commencing an inquiry, the Inspector-General must notify the Director-General of the relevant intelligence and security agency of—

(a)

the commencement of the inquiry; and

(b)

the nature of the inquiry.

(2)

If the inquiry relates to a complaint, the Inspector-General must also give to the Director-General of the relevant intelligence and security agency a copy of the complaint.

(3)

If the inquiry is initiated by the Inspector-General in reliance on section 121(1)(d), the Inspector-General must advise the Minister responsible for the relevant intelligence and security agency of—

(a)

the commencement of the inquiry; and

(b)

the nature of the inquiry.

(4)

In this section, relevant intelligence and security agency means the intelligence and security agency that the inquiry relates to.

Compare: 1996 No 47 s 19(1), (2)

139 Evidence

(1)

The Inspector-General must conduct an inquiry in private.

(2)

The Inspector-General may receive in evidence any statement, document, information, or matter that may, in the Inspector-General’s opinion, assist him or her with the inquiry, whether or not the statement, document, information, or matter would be admissible in a court of law.

(3)

The Inspector-General must allow a complainant to be heard, to be represented by counsel or any other person, and to have any other persons testify to the complainant’s record, reliability, and character.

(4)

If, at any time during an inquiry, it appears to the Inspector-General that there may be sufficient grounds for making any report or recommendation that may adversely affect an intelligence and security agency, any employee of an intelligence and security agency, or any other department or person, the Inspector-General must give that agency, employee, or person an opportunity to be heard.

(5)

Subject to the provisions of this Act, the Inspector-General may regulate his or her procedure in the manner that he or she thinks fit.

Compare: 1996 No 47 s 19(4)–(8)

140 Evidence of breach of duty or misconduct by employee of intelligence and security agency

If, during the course of an inquiry, the Inspector-General forms the opinion that there is evidence of a breach of duty or misconduct by an employee of an intelligence and security agency, the Inspector-General must immediately advise—

(a)

the Director-General of the intelligence and security agency; and

(b)

the Minister responsible for the intelligence and security agency.

Compare: 1996 No 47 s 25(3)

141 Power to summon persons

(1)

The Inspector-General may summon and examine on oath any person who the Inspector-General considers is able to give information relevant to the inquiry, and may for that purpose administer an oath to any person.

(2)

Every examination by the Inspector-General under subsection (1) is to be treated as a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

(3)

Witnesses’ fees, allowances, and expenses according to the scales for the time being prescribed by regulations made under the Criminal Procedure Act 2011—

(a)

must be paid by the Inspector-General to any person who appears as a witness before the Inspector-General under a summons; and

(b)

may, if the Inspector-General so decides, be paid by the Inspector-General to any other person who appears as a witness before the Inspector-General.

(4)

The Inspector-General may disallow the whole or any part of a sum payable under subsection (3)(a).

Compare: 1996 No 47 s 23(2), (3), (6)

142 Power to require information and documents

The Inspector-General may require any person to provide—

(a)

any information that the Inspector-General considers may be relevant to an inquiry; and

(b)

any documents or things in the possession or under the control of that person that the Inspector-General considers may be relevant to an inquiry.

Compare: 1996 No 47 s 23(1)

143 Disclosure of information may be required despite obligation of secrecy

(1)

A person who is bound obliged by the provisions of an enactment or otherwise to maintain secrecy in relation to, or not to disclose, any matter may be required to do the following even if compliance with the requirement would otherwise breach the obligation of secrecy or non-disclosure:

(a)

give evidence to, or answer questions put by, the Inspector-General:

(b)

provide information, documents, or things to the Inspector-General.

(2)

Compliance with a requirement under subsection (1) is not a breach of the relevant obligation of secrecy or non-disclosure or of the any enactment by which that obligation is imposed.

(3)

This section is subject to section 144.

Compare: 1996 No 47 s 23(5)

144 Protection and privileges of witnesses

Every person who does the following has the same privileges as witnesses have in a court of law:

(a)

gives evidence to, or answers questions put by, the Inspector-General:

(b)

provides information, documents, or things to the Inspector-General.

Compare: 1996 No 47 s 23(4)

145 Information disclosed to Inspector-General privileged

Any information, document, or thing produced by any person in the course of an inquiry conducted by the Inspector-General is privileged in the same manner as if the inquiry were a proceeding in a court.

(2)

The following persons may not be required to give evidence in any court, or in proceedings of a judicial nature, in respect of anything that comes to their knowledge when they are performing or exercising their functions, duties, or powers:

(a)

the Inspector-General, or any person who has held office as Inspector-General:

(b)

the Deputy Inspector-General, or any person who has held office as Deputy Inspector-General:

(c)

a person who is, or has been, employed by the Inspector-General:

(d)