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Note: This Supplementary Order Paper shows amendments to the Bill that are being proposed by the Minister for the purposes of consideration in Committee of the whole House. This document does—
This Supplementary Order Paper amends the Government Communications Security Bureau and Related Legislation Amendment Bill.
The amendments are as follows:
Part 1—Amendments to Government Communications Security Bureau Act 2003
• new clause 5A: this should be read together with new clauses 25A and 25B and Schedule 1. These provisions give effect to a new drafting development this year whereby application, savings, and transitional provisions are now being located in the Act being amended (usually in a schedule of the Act) rather than being located in amending legislation where it can be overlooked if a reader of the Act on the New Zealand Legislation web site does not look at the amending legislation. The effect of the transitional provisions in the new schedule of the Government Communications and Security Bureau Act 2003 (set out in Schedule 1 of the Bill) is that the amendments in Part 1 of the Bill do not apply to warrants and authorisations in force immediately before the amendments come into force. However, those warrants and authorisations are to be treated as having expired at the close of the third month after the Bill receives the Royal assent, unless they have expired earlier:
• clause 14: new section 15D, which specifies the information that an interception warrant or access authorisation must contain, is replaced. The replacement section is more consistent with the terms of new section 15A which provides for the issue of warrants and authorisations. Consequential amendments to new section 15E are made as a result:
Part 2—Amendments to Inspector-General of Intelligence and Security Act 1996
• clause 33A: this clause inserts new sections 15A to 15F, which relate to the new advisory panel that is to provide advice to the Inspector-General of Intelligence and Security. The amendment is to new section 15E, which provides for clerical and secretarial services to the panel, and requires any person providing clerical and secretarial services to have an appropriate security clearance:
Departmental disclosure statement
The Department of the Prime Minister and Cabinet considers that a disclosure statement is not required to be prepared for this Supplementary Order Paper.
Right Honourable John Key, in Committee, to propose the amendments shown in the following document.
Rt Hon John Key
Government Communications Security Bureau and Related Legislation Amendment Bill
The Parliament of New Zealand enacts as follows:
This Act is the Government Communications Security Bureau and Related Legislation Amendment Act 2013.
This Act comes into force on the day that is 1 month after the date on which it receives the Royal assent.
Amendments to Government Communications Security Bureau Act 2003
3 Principal Act
This Part amends the Government Communications Security Bureau Act 2003 (the principal Act).
4 Section 3 amended (Purpose)
Replace section 3(c) to (e) with:
5 Section 4 amended (Interpretation)
(1) This section amends section 4.
(2) Repeal the definitions of computer access authorisation or authorisation, computer system, foreign communications, foreign intelligence, and network.
(3) Insert in their appropriate alphabetical order:
“access authorisation means an authorisation issued under section 15A(1)(b)
“incidentally obtained intelligence means intelligence—
“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”.
(4) In the definition of access, replace
“computer system” with
(5) In the definition of communication, after
(6) In the definition of foreign organisation, paragraph (d), replace
(7) In the definition of interception warrant, replace
“section 17” with
6 Sections 7 and 8 replaced
Replace sections 7 and 8 with:
“7 Objective of Bureau
The objective of the Bureau, in performing its functions, is to contribute to—
“8 Functions of Bureau
“(1) Sections 8A to 8C set out the functions of the Bureau.
“(2) The order in which the functions are set out is not to be taken as specifying any order of importance or priority.
“(3) The performance of the Bureau's functions and the relative importance and priority of the functions, if any, are to be determined, from time to time, by the Director, subject to the control of the Minister.
“(4) Without limiting subsection (3), the performance of the Bureau's functions under section 8A (information assurance and cybersecurity) and section 8C (co-operation with other entities to facilitate their functions) is at the discretion of the Director.
“(5) In addition to the functions set out in sections 8A to 8C, the Bureau has the functions (if any) conferred on it by or under any other Act.
“8A Information assurance and cybersecurity
This function of the Bureau is—
“(a) to co-operate with, and provide advice and assistance to, any public authority whether in New Zealand or overseas, or to any other entity authorised by the Minister, on any matters relating to the protection, security, and integrity of—
“(i) communications, including those that are processed, stored, or communicated in or through information infrastructures; and
“(b) without limiting paragraph (a), to do everything that is necessary or desirable to protect the security and integrity of the communications and information infrastructures referred to in paragraph (a), including identifying and responding to threats or potential threats to those communications and information infrastructures; and
“8B Intelligence gathering and analysis
“(1) This function of the Bureau is—
“(a) to gather and analyse intelligence (including from information infrastructures) in accordance with the Government's requirements about the capabilities, intentions, and activities of foreign persons and foreign organisations; and
“(2) For the purpose of performing its function under subsection (1)(a) and (b), the Bureau may co-operate with, and provide advice and assistance to, any public authority (whether in New Zealand or overseas) and any other entity authorised by the Minister for the purposes of this subsection.
“8C Co-operation with other entities to facilitate their functions
“(1) This function of the Bureau is to co-operate with, and provide advice and assistance to, the following for the purpose of facilitating the performance of their functions:
“(2) To avoid doubt, the Bureau may perform its function under subsection (1)
“(c) even though the advice and assistance might involve the exercise of powers by, or the sharing of the capabilities of, the Bureau that the Bureau is not, or could not be, authorised to exercise or share in the performance of its other functions.
“(3) Any advice or assistance provided by the Bureau under subsection (1) to another entity is subject to—
“8CA Principles underpinning performance of Bureau's functions
“(1) In performing its functions under this Act, the Bureau acts—
“(a) in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment:
“(2) Subsection (1) does not impose particular duties on, or give particular powers to, the Bureau, the Director, or any employee of the Bureau.
“(3) The Director must take all reasonable steps to ensure that—
“(4) The Director must consult regularly with the Leader of the Opposition for the purpose of keeping him or her informed about matters relating to the Bureau's functions under sections 8A to 8C.
“8D Director has full powers for purpose of performing Bureau's functions
“(1) The Director has all the powers that are necessary or desirable for the purpose of performing the functions of the Bureau.
“(2) Subsection (1) applies subject to this Act, any other enactment, and the general law.”
7 Section 9 replaced (Director of Bureau)
Replace section 9 with:
“9 Appointment of Director
“(1) The Director of the Bureau is appointed by the Governor-General, on the recommendation of the Prime Minister, for a term not exceeding 5 years, and may from time to time be reappointed.
“(2) To avoid doubt, the mere fact that a person holds the position of Director does not entitle the person to be reappointed or to expect to be reappointed.
“9A Appointment process
The State Services Commissioner—
“9B Remuneration and conditions of appointment of Director
“(1) The Director is paid the remuneration and allowances determined by the Remuneration Authority.
“(2) The other terms and conditions of the Director's appointment are determined from time to time by the State Services Commissioner.
“9C Removal from office
“(1) The Governor-General may at any time for just cause, on the recommendation of the Prime Minister, remove the Director from office.
“(2) The removal must be made by written notice to the Director.
“(4) The State Services Commissioner is responsible for advising the Prime Minister on any proposal to remove the Director from office.
“(5) In this section, just cause includes misconduct, inability to perform the functions of office, and neglect of duty.
“9D Review of performance of Director
“(1) The Minister may direct the State Services Commissioner or another person to review, either generally or in respect of any particular matter, the performance of the Director.
“(2) The person conducting a review under subsection (1) must report to the Minister on the manner and extent to which the Director is fulfilling all of the requirements imposed on the Director, whether under this Act or otherwise.
“(3) No review under this section may consider any security operations undertaken, or proposed to be undertaken.”
8 Section 11 amended (Prohibition on unauthorised disclosure of information)
9 Section 12 amended (Annual report)
(1) In section 12(2), replace
“without delay” with
“as soon as practicable”.
(2) In section 12(3)(c), delete
10 Part 3 heading replaced
Replace the Part 3 heading with:
“Intercepting communications and accessing information infrastructures”.
11 Section 13 replaced (Purpose of Part)
Replace section 13 with:
“13 Purpose of Part
The purpose of this Part is—
12 Section 14 replaced (Interceptions not to target domestic communications)
Replace section 14 with:
“14 Interceptions not to target New Zealand citizens or permanent residents for intelligence-gathering purposes
“(1) In performing the Bureau's function in section 8B, the Director, any employee of the Bureau, and any person acting on behalf of the Bureau must not authorise or do anything for the purpose of intercepting the private communications of a person who is a New Zealand citizen or a permanent resident of New Zealand, unless (and to the extent that) the person comes within the definition of foreign person or foreign organisation in section 4.
“(2) Any incidentally obtained intelligence obtained by the Bureau in the performance of its function in section 8B—
13 Section 15 amended (Interceptions for which warrant or authorisation required)
(1) In section 15(1)(a), replace
“a network” with
“an information infrastructure”.
14 New sections 15A to 15F and cross-heading inserted
After section 15, insert:
“Authorisations to intercept communications or access information infrastructures
“15A Authorisation to intercept communications or access information infrastructures
“(1) For the purpose of performing the Bureau's functions under section 8A or 8B, the Director may apply in writing to the Minister for the issue of—
“(2) The Minister may grant the proposed interception warrant or access authorisation if satisfied that—
“(3) Before issuing a warrant or an authorisation, the Minister must consult the Minister of Foreign Affairs about the proposed warrant or authorisation.
“(4) The Minister may issue a warrant or an authorisation subject to any conditions that the Minister considers desirable in the public interest.
“(5) This section applies despite anything in any other Act.
“15B Involvement of Commissioner of Security Warrants
“(1) An application for, and issue of, an interception warrant or access authorisation under section 15A must be made jointly to, and issued jointly by, the Minister and the Commissioner of Security Warrants if anything that may be done under the warrant or authorisation is for the purpose of intercepting the private communications of a New Zealand citizen or permanent resident of New Zealand under—
“(2) For the purposes of subsection (1), section 15A applies—
“(3) In this section, Commissioner of Security Warrants means the Commissioner of Security Warrants appointed under section 5A of the New Zealand Security Intelligence Service Act 1969.
“15C Privileged communications
“(1) No interception warrant or access authorisation is to be issued under section 15A, and no powers are to be exercised under an interception warrant or access authorisation issued under section 15A, for the purpose of intercepting the privileged communications of New Zealand citizens or permanent residents of New Zealand.
“(2) In subsection (1), privileged communications means communications that are privileged in proceedings in a court of law under section 54, 56, 58, or 59 of the Evidence Act 2006.
“15D Information that interception warrant or access authorisation must contain Every interception warrant and access authorisation must specify the following information:
“15E Warrant or authorisation may authorise persons to assist person giving effect to warrant or authorisation
“(1) A warrant or an authorisation may request 1 or more persons or classes of persons to give any assistance that is reasonably necessary to give effect to the warrant or authorisation.
“(2) If a request is made, under subsection (1), to 1 or more persons or classes of persons who are employees (the employees), the warrant or authorisation must also request the persons who are the employers of the employees, or any other persons in any way in control of the employees, to make the services of the employees available to the Bureau.
“(3) On an application made in writing by the Director, the Minister may amend a warrant or authorisation—
“(a) by substituting a person, persons, or classes of persons for the person, persons, or classes of persons specified in the warrant
or authorisation under section 15D(e):
“(b) by substituting another person, other persons, or other classes of persons for a person, persons, or classes of persons requested under subsection (1):
“15F Expiry of warrant or authorisation not to prevent further application
The expiry of an interception warrant or of an authorisation does not prevent a further application for an interception warrant or an authorisation in respect of the same subject matter.”
15 Section 16 amended (Certain interceptions permitted without interception warrant or computer access authorisation)
(1) In the heading to section 16, delete
(2) In section 16, before subsection (1), insert:
(3) In section 16(1), delete
(4) Replace section 16(2) with:
“(2) The Director, or an employee of the Bureau, or a person acting on behalf of the Bureau may, without an interception warrant, or, as the case requires, without an access authorisation, intercept communications by using an interception device or by accessing an information infrastructure, but only if—
16 Section 17 and cross-heading repealed
Repeal section 17 and the cross-heading above section 17.
17 Section 18 repealed (Persons acting under warrant)
18 Section 19 and cross-heading replaced
Replace section 19 and the cross-heading above section 19 with:
“Register of interception warrants and access authorisations
“19 Register of interception warrants and access authorisations
“(1) The Director must keep a register of interception warrants and access authorisations issued under this Part.
“(2) The following information must be entered in the register in relation to every interception warrant and access authorisation issued under this Part:
“(3) The Director must make the register available to the Minister or the Inspector-General of Intelligence and Security as and when requested by the Minister or the Inspector-General.
“Urgent issue of warrants and authorisations
“19A Urgent issue of warrants and authorisations
“(1) This section applies if—
“(2) Any of the following may issue a warrant or an authorisation:
“(3) A person issuing a warrant or an authorisation under subsection (2) may do so only to the same extent and subject to the same terms and conditions as apply to the issue of a warrant or an authorisation by the Minister.
“(4) A person issuing a warrant or an authorisation under subsection (2) must, as soon as practicable after the Minister becomes available, advise the Minister about the issue of the warrant.”
19 Section 20 amended (Director’s functions in relation to warrants and authorisations not to be delegated)
In section 20, replace
“section 17 or section 19” with
20 Section 21 replaced (Action taken in accordance with warrant or authorisation justified)
Replace section 21 with:
“21 Immunity from civil and criminal liability
“(1) Every person is immune from civil or criminal liability—
“(2) Every person is immune from civil and criminal liability for any act done in good faith and in a reasonable manner in order to assist a person to do anything authorised by a warrant or an authorisation under this Act or under section 16.
“(3) In any civil proceeding in which a person asserts that he or she has an immunity under this section, the onus is on the person to prove the facts necessary to establish the basis of the claim.
“(4) Section 86 of the State Sector Act 1988 applies to the Director and any employee of the Bureau subject to this section.”
21 Section 22 repealed (Term of warrant or authorisation)
22 Section 23 amended (Destruction of irrelevant records obtained by interception)
(1) In section 23(1), delete
(2) In section 23(1), after
“except to the extent”, insert
“permitted by section 25 or to the extent”.
(3) In section 23(1)(a), replace
“section 7(1)(a)” with
(4) In section 23(1)(b), replace
“section 8” with
“section 8A or 8B”.
23 Section 24 amended (Duty to minimise impact of interception on third parties)
In section 24, replace
“a computer” with
24 Section 25 replaced (Prevention or detection of serious crime)
Replace section 25 with:
“25 When incidentally obtained intelligence may be retained and communicated to other persons
“(1) Despite section 23, the Director may—
25 New sections 25A and 25B and cross-heading inserted
After section 25, insert:
“Protection and disclosure of personal information
“25A Formulation of policy on personal information
“(1) As soon as is reasonably practicable after the commencement of this section, the Director must, in consultation with the Inspector-General of Intelligence and Security and the Privacy Commissioner, formulate a policy that applies to the Bureau (in a manner compatible with the requirements of national security) the principles set out in section 25B.
“(2) The policy must require—
“(2A) The Director must advise the Privacy Commissioner of the results of audits conducted under the policy.
“(2B) The Privacy Commissioner may provide a report to the Inspector-General of Intelligence and Security if the results of the audits disclose issues that need to be addressed.
“(3) The Director must regularly review the policy at intervals of not more than 3 years and, if he or she considers it appropriate to do so, revise the policy in consultation with the Inspector-General of Intelligence and Security and the Privacy Commissioner.
“25B Principles to protect personal information
The principles referred to in section 25A(1) are as follows:
“(c) the Bureau must not use personal information without taking such steps (if any) as are, in the light of the interests and constraints of national security and the nature of intelligence gathering, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date, complete, relevant, and not misleading:
26 Consequential amendments
The Acts listed in
the Schedule are consequentially amended in the manner indicated in that schedule.
Amendments to Inspector-General of Intelligence and Security Act 1996
27 Principal Act
This Part amends the Inspector-General of Intelligence and Security Act 1996 (the principal Act).
28 Section 2 amended (Interpretation)
In section 2(1), insert in their appropriate alphabetical order:
“advisory panel means the advisory panel established by section 15A
“Deputy Inspector-General means the Deputy Inspector-General of Intelligence and Security holding office under section 5
“Intelligence and Security Committee means the Intelligence and Security Committee established by section 5 of the Intelligence and Security Committee Act 1996”.
29 Section 5 and cross-heading replaced
Replace section 5 and the cross-heading above section 5 with:
“Inspector-General and Deputy Inspector-General of Intelligence and Security
“5 Inspector-General and Deputy Inspector-General of Intelligence and Security
“(2) The Inspector-General and Deputy Inspector-General must be appointed by the Governor-General on the recommendation of the Prime Minister following consultation with the Intelligence and Security Committee.
“(3) The Deputy Inspector-General has and may exercise and perform the powers and functions of the Inspector-General (whether under this Act or any other enactment), but subject to—
“(b) to avoid doubt, the same duties, obligations, restrictions, and terms under which the Inspector-General exercises and performs his or her powers and functions.
“(4) Sections 7 to 9 and 18 apply to the Deputy Inspector-General as if references in those sections to the Inspector-General were references to the Deputy Inspector-General.
“(5) 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 exercise and perform all the powers, functions, and duties of the Inspector-General for as long as the vacancy or absence continues.
“(6) The fact that the Deputy Inspector-General exercises or performs any power, function, or duty of the Inspector-General is, in the absence of proof to the contrary, conclusive evidence of the Deputy Inspector-General's authority to do so.”
30 Section 6 amended (Term of office)
(1) Replace section 6(1) with:
(2) In section 6(2) and (3), after
“or Deputy Inspector-General” in each place.
31 Section 11 amended (Functions of Inspector-General)
(1AA) After section 11(1)(b), insert:
(1) Replace section 11(1)(c), (d), and (da) with:
“(c) to inquire at the request of the Minister or the Prime Minister or of the Inspector-General's own motion into any matter where it appears that a New Zealand person has been or may be adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency:
(2) Repeal section 11(2).
(3) In section 11(3), replace
32 Section 12 amended (Consultation)
Replace section 12(2) with:
33 Section 15 amended (Jurisdiction of courts and other agencies not affected)
In section 15(3), replace
“or of the Privacy Commissioner” with
“, the Privacy Commissioner, a Human Rights Commissioner, or the Independent Police Conduct Authority”.
33A New sections 15A to 15F and cross-heading inserted
After section 15, insert:
“15A Advisory panel established
This section establishes an advisory panel.
“15B Function of advisory panel
“(1) The function of the advisory panel is to provide advice to the Inspector-General.
“(2) The advisory panel may provide advice—
“(3) To assist the advisory panel to perform its function,—
“(4) The advisory panel may make a 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.
“15C Membership of advisory panel
“(1) The advisory panel consists of—
“(2) The members and chairperson appointed under this subsection are appointed by the Governor-General on the recommendation of the Prime Minister after consulting the Intelligence and Security Committee.
“(3) One of the members appointed under subsection (2) must be a lawyer within the meaning of the Lawyers and Conveyancers Act 2006 who has held a practising certificate as a barrister or barrister and solicitor for not less than 7 years.
“(4) Both of the members appointed under subsection (2) must have an appropriate security clearance.
“(5) A member appointed under subsection (2)—
“15D Remuneration of appointed members of advisory panel
“(1) A member of the advisory panel appointed under section 15C(1)(a) is entitled—
“(2) For the purposes of subsection (1), fees framework means the framework determined by the Government from time to time for the classification and remuneration of statutory and other bodies in which the Crown has an interest.
“15E Clerical and secretarial services
“(1) The Department of the Prime Minister and Cabinet is responsible for providing to the advisory panel the clerical and secretarial services necessary for the advisory panel to perform its function effectively and efficiently.
“15F Advisory panel to determine own procedure
The advisory panel may determine its own procedure.”
33B Section 24 amended (Proceedings privileged)
Replace section 24(1) with:
34 Section 25 amended (Reports in relation to inquiries)
After section 25(5), insert:
35 New section 25A inserted (Publication of Inspector-General's reports under section 25)
After section 25, insert:
“25A Publication of Inspector-General's reports under section 25
“(1) As soon as practicable after forwarding a report as required by section 25(1), the Inspector-General must make a copy of the report publicly available on an Internet site maintained by or on behalf of the Inspector-General.
“(2) However, the Inspector-General must not, in the copy of a report made publicly available under subsection (1), disclose—
“(c) the identity of any person who is or has been an officer, employee, or agent of an intelligence and security agency other than the chief executive, or any information from which the identity of such a person could reasonably be inferred; or
35A Section 26 amended (Disclosure)
In section 26(1), after
“Act, the Inspector-General”, insert
“and an appointed member of the advisory panel”.
36 Section 27 amended (Reports by Inspector-General)
(1) After section 27(2)(b), insert:
(2) In section 27(3), replace
“lay a copy of the report before” with
“present a copy of the report to”.
(3) In section 27(4) and (6), replace
“laid before” with
(4) After section 27(6), insert:
“(6A) As soon as practicable after a copy of the report is presented to the House of Representatives under subsection (3), the Inspector-General must make a copy of the report (as presented to the House of Representatives) publicly available on an Internet site maintained by or on behalf of the Inspector-General.”
36A Section 28 amended (Secrecy)
In section 28(1), after
“been, the Inspector-General”, insert
“or an appointed member of the advisory panel”.
Amendments to Intelligence and Security Committee Act 1996
37 Principal Act
This Part amends the Intelligence and Security Committee Act 1996 (the principal Act).
38 Section 6 amended (Functions of Committee)
Replace section 6(1)(e) with:
39 New section 7A inserted (Further provisions relating to chairperson and Leader of the Opposition)
After section 7, insert:
“7A Further provisions relating to chairperson and Leader of the Opposition
“(1) Subsection (2) applies if—
“(a) the Committee is, in the course of conducting a financial review of an intelligence and security agency, discussing any matter relating to the performance of the intelligence and security agency; and
“(2) If the Prime Minister is chairing the meeting of the Committee at which the matter is discussed,—
“(3) The chairperson of the Committee may appoint either of the following (if not already a member of the Committee) to be an alternate chairperson to act as chairperson at the discretion of the chairperson in the absence of the chairperson at a meeting of the Committee:
“(4) The Leader of the Opposition may appoint the person who acts as his or her deputy in the House of Representatives to act in place of the Leader of the Opposition in the absence of the Leader of the Opposition at a meeting of the Committee.”
39A Section 13 amended (Meetings of Committee)
After section 13(6), insert:
40 Section 18 amended (Restrictions on reports to House of Representatives)
In section 18(1), replace
“presenting an annual report or other report”.
Radiocommunications Act 1989 (1989 No 148)
In section 133A(2)(c)(ii), replace
“foreign intelligence” with
“intelligence about the capabilities, intentions, and activities of foreign persons and foreign organisations”.
Repeal section 133A(3)(a).
Search and Surveillance Act 2012 (2012 No 24)
In section 47(1)(c)(ii), replace
Telecommunications (Interception Capability) Act 2004 (2004 No 19)
In section 3(1), definition of interception warrant, paragraph (c), replace
In section 3(1), definition of other lawful interception authority, replace paragraph (a)(ii) with: