New Zealand Intelligence and Security Bill

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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: