New Zealand Intelligence and Security Bill

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New Zealand Intelligence and Security Bill

Government Bill

158—1

Explanatory note

General policy statement

The New Zealand Intelligence and Security Bill implements the Government response to the Report of the First Independent Review of Intelligence and Security in New Zealand: Intelligence and Security in a Free Society (G.24a) (the Review).

The Review is the first that has been undertaken pursuant to amendments to the Intelligence and Security Committee Act 1996 that were made in 2013, and it has resulted in wide-ranging recommendations. In particular, the Review recommends that the Government Communications Security Bureau (the GCSB) and the New Zealand Security Intelligence Service (the NZSIS) and their oversight bodies be covered by a single, comprehensive piece of legislation. It emphasises the need to remove barriers to effective co-operation between the GCSB and the NZSIS and the need to improve transparency and oversight arrangements to give the public greater confidence that the agencies are acting lawfully and appropriately.

The Bill adopts the majority of the Review’s recommendations. In developing its response to the Review, the Government has sought to ensure that the new legislation—

  • is adaptable to changing circumstances and is technology-neutral; and

  • reflects New Zealand’s long-standing commitment to human rights, democracy, accountability, and the rule of law; and

  • is effective, clear, and easy to understand; and

  • promotes a joined-up and efficient New Zealand intelligence community that engages effectively with other domestic agencies, including law enforcement agencies; and

  • facilitates effective engagement and co-operation with New Zealand’s international security partners.

The Bill replaces the 4 Acts that currently apply to the GCSB, the NZSIS, and their oversight bodies (the Inspector-General of Intelligence and Security and the Intelligence and Security Committee). Having 1 piece of legislation will make the law much easier to understand and access.

The Bill continues existing protections around political neutrality, lawful advocacy, protest, and dissent and it requires the Director-General of an intelligence and security agency to regularly consult the Leader of the Opposition. Its purpose is expressly framed as to “protect New Zealand as a free, open, and democratic society”, and a variety of provisions are included to increase transparency around the intelligence and security agencies’ activities. For example, some activities carried out by the GCSB and the NZSIS as part of their functions will be acknowledged in legislation for the first time (for example, the use of assumed identities and human intelligence activities).

The Bill will bring the GCSB and the NZSIS more fully within the ambit of normal State sector arrangements. Specifically, it establishes the NZSIS as a public service department under the State Sector Act 1988 and makes the GCSB fully subject to that Act. The Director-General of each agency will be appointed by the State Services Commissioner, and their terms and conditions will be determined within the State Sector Act 1988 framework.

To remove artificial and confusing barriers to co-operation and to make clear the consistency of purpose and links within the New Zealand intelligence community, the Bill contains shared objectives, functions, and powers for the GCSB and the NZSIS. It contains a single authorisation regime applying to both agencies that covers their intelligence collection and protective security functions.

Warrants may authorise the intelligence and security agencies to carry out an otherwise unlawful activity where it contributes to 1 of the 3 shared objectives of the agencies. The proposed activity must be necessary and proportionate to the purpose for which it is sought to be carried out in order for a warrant to be issued. The authorisation regime also provides for the possibility of joint warrants being issued that enable the agencies to conduct joint operations using the specialist capabilities of both agencies, where this is judged to be appropriate.

All warrants require the approval of the Attorney-General. Where a warrant is sought to collect intelligence about a New Zealander, both the Attorney-General and a Commissioner of Intelligence Warrants will need to approve the activity that the authorisation is sought for. All warrants are subject to review and audit by the Inspector-General of Intelligence and Security.

To support the GCSB and the NZSIS to carry out their functions and to ensure clarity and transparency around their access to information, the Bill contains a comprehensive information-sharing regime. It also significantly increases the number of Privacy Act 1993 information privacy principles applying to the GCSB and the NZSIS, which will give individuals an avenue for making complaints in respect of certain actions taken by the GCSB and the NZSIS where none has previously existed.

The Bill also makes a number of significant enhancements to the oversight institutions and their roles. These include the removal of the current restriction on the Inspector-General of Intelligence and Security inquiring into operationally sensitive matters, and clarifying that the Inspector-General may review warrants on substantive, as well as procedural, grounds. The Intelligence and Security Committee will be able to request that the Inspector-General of Intelligence and Security inquire into any matter relating to the intelligence and security agencies’ compliance with New Zealand law, including human rights law.

The Bill also continues, for an unlimited time, the provisions put in place by the Countering Terrorist Fighters Legislation Bill in 2014, including the amendments to the Passports Act 1992, which enable the refusal of applications for, or cancellation of, New Zealand travel documents of a person if there are reasonable grounds to believe that the person is a danger to national or international security. This Bill includes an additional protection that requires all such decisions regarding New Zealand travel documents to be subject to review by a Commissioner of Intelligence Warrants.

Departmental disclosure statement

The Department of the Prime Minister and Cabinet is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2016&no=158

Regulatory impact statement

The Department of the Prime Minister and Cabinet produced a regulatory impact statement on 5 April 2016 to help inform the main policy decisions taken by the Government relating to the contents of this Bill. An addendum to this regulatory impact statement was produced on 11 August 2016.

A copy of this regulatory impact statement and addendum can be found at—

Clause by clause analysis

Clause 1 is the Title clause. The Bill is, at the end of its Committee of Whole House stage, intended to be divided into the following 2 Bills:

  • Parts 1 to 7 and Schedules 1 to 3 will become the New Zealand Intelligence and Security Act 2016:

  • Part 8 and Schedule 4 will become the New Zealand Intelligence and Security (Repeals and Amendments) Act 2016.

Clause 2 is the commencement clause. There are 3 commencement dates—

  • on the day after the date of Royal assent the provisions enabling the intelligence and security agencies to have direct access to databases storing the public sector information specified in Schedule 2 come into force, to ensure the intelligence and security agencies have the benefit of these provisions as soon as possible:

  • on 1 April 2017 the amendments to the Passports Act 1992 and the provisions relating to the appointment and functions of the Commissioners of Intelligence Warrants come into force, to ensure the continuity of the temporary provisions in the Passports Act 1992 that expire on 31 March 2017:

  • on the day that is 6 months after the date of Royal assent all of the other provisions in the Bill come into force.

Part 1Preliminary provisions

Clause 3 states the purpose of the Bill.

Clause 4 defines terms used in the Bill. Key terms include intelligence and security agency and ministerial policy statement.

Clause 5 defines national security (as recommended in the Review).

Clause 6 defines sensitive information.

Clause 7 gives effect to the transitional, savings, and related provisions in Schedule 1.

Clause 8 states that the Bill binds the Crown.

Part 2Intelligence and security agencies

Clause 9 continues the New Zealand Security Intelligence Service (the NZSIS) and establishes it as a department of State. The NZSIS specialises in human intelligence activities.

Clause 10 continues the Government Communications Security Bureau (the GCSB). The GCSB specialises in signals intelligence and information assurance and cybersecurity activities.

Objectives

Clause 11 provides that the principal objectives of the intelligence and security agencies are to contribute to—

  • the protection of New Zealand’s national security; and

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

  • the economic well-being of New Zealand.

Functions

Clause 12 sets out the following principles that underpin the performance of the functions, of an intelligence security agency. When performing its functions, an intelligence and security agency must act—

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

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

  • with integrity and professionalism; and

  • in a manner that facilitates effective democratic oversight.

Clauses 13 to 18 set out the functions of the intelligence and security agencies. These functions are—

  • intelligence collection and analysis:

  • protective security services, advice, and assistance:

  • co-operation with other entities to facilitate their functions:

  • co-operation with other entities to respond to an imminent threat:

  • other functions conferred or imposed by or under any other enactment.

Clause 19 provides that it is not a function of an intelligence and security agency to enforce measures for national security except as may be required in connection with information assurance and cybersecurity activities undertaken by the GCSB, or under any other enactment.

Clause 20 provides that activities undertaken by an intelligence and security agency must be relevant to the performance of its functions and that an intelligence and security agency must be kept free from any influence or consideration that is not relevant to its functions.

Clause 21 provides that the activities of an intelligence and security agency must be kept politically neutral.

Clause 22 provides that nothing in the Bill limits the right of persons to engage in lawful advocacy, protest, or dissent, and that the exercise of such rights does not of itself justify the collection of intelligence on any person who is in New Zealand or any class of persons who are in New Zealand.

Clause 23 provides that the Director-General of an intelligence and security agency must keep the Leader of the Opposition informed about matters relating to the agency’s functions.

Part 3Covert activities of intelligence and security agencies

Subpart 1—Assumed identities

Clause 24 states the purpose of this subpart. The purpose is to enable an employee of an intelligence and security agency to acquire, use, and maintain an assumed identity for the purposes of—

  • enabling the agency to carry out its activities secretly:

  • protecting the identity of the employee.

Clause 25 defines terms used in this subpart. Key terms include assumed identity, authorised person, and employee.

Clause 26 provides that an employee of an intelligence and security agency may acquire, use, and maintain an assumed identity if authorised to do so by the Director-General of the intelligence and security agency. An authorisation may only be given by the Director-General if he or she is satisfied that the acquiring, use, and maintenance of the assumed identity is necessary for a purpose specified in clause 24. Clause 26 also allows an intelligence and security agency to make a false document for use in supporting the use or maintenance of an assumed identity if the Director-General is satisfied that this is necessary for a purpose specified in clause 24 and the document is of a kind that is not ordinarily issued or given by a Minister or government agency.

Clause 27 provides that an employee may use an assumed identity as if it were his or her own identity.

Clause 28 enables the Director-General of an intelligence and security agency to request any other agency to assist with acquiring, using, and maintaining an assumed identity. A request must provide certain details and confirm that the request is made for either or both the purposes specified in clause 24.

Clause 29 provides that an agency may grant a request under clause 28 for assistance if it is satisfied it is appropriate to do so and that there are reasonable protections in place to ensure the assumed identity will be used appropriately. Assistance may include—

  • issuing evidence of an assumed identity (for example, issuing a birth certificate, driver licence, or passport); and

  • inserting any information in a register or other record of information (for example, inserting information relating to the assumed identity in the register of births or marriages):

  • inserting any operational or administrative information that may be necessary to support evidence of the assumed identity (for example, inserting information supporting the issue of a passport in the name of an assumed identity).

Clause 30 provides that an agency must cancel evidence of an assumed identity if directed to do so by the Director-General of an intelligence and security agency.

Clause 31 provides that evidence of an assumed identity may be issued, given, changed, or cancelled without complying with the requirements of any enactment, policy, or practice specifying any criteria, standards, requirements, or process, or procedure.

Clause 32 imposes restrictions on persons being permitted access to a request for assistance received under clause 28 or a direction given under clause 30.

Clause 33 protects from civil and criminal liability persons who comply with a request made under clause 28 or a direction given under clause 30.

Clause 34 protects from civil and criminal liability authorised persons acquiring, using, and maintaining an assumed identity for any action taken in good faith and with reasonable care and in accordance with any protections referred to in clause 29(1).

Subpart 2—Corporate identities

Clause 35 states the purpose of this subpart. The purpose is to enable an intelligence and security agency to create and maintain a legal entity through which an agency may conduct transactions in order to keep its activities secret.

Clause 36 defines terms used in this subpart. Key terms include agency, entity, and regulatory authority.

Clause 37 enables the Director-General of an intelligence and security agency to request any other agency to take an action that—

  • forms or incorporates an entity:

  • confers on an entity any legal status or capacity:

  • allocates to an entity a unique identifier:

  • provides evidence of any legal identity, status, or capacity having been conferred on an entity:

  • provides evidence of a unique identifier having been allocated to an entity:

  • is ancillary to, or consequential on, any of the above actions.

A request must provide certain details and confirm that the request is made for the purpose specified in clause 35.

Clause 38 provides that an agency may comply with a request if it is satisfied it is appropriate to do so and that there are reasonable protections in place to ensure the appropriate use of the legal identity, status, or capacity to be conferred on the entity, or of the unique identifier to be allocated to the entity.

Clause 39 enables the Director-General of an intelligence and security agency to request any other agency to assist with maintaining the legal identity, status, or capacity that has been conferred under clause 38.

Clause 40 provides that an agency must take such steps as may subsequently be directed by the Director-General of an intelligence and security agency to negate the effect of an action earlier taken by that agency in response to a request received under clause 37, and to expunge any record of that earlier action.

Clause 41 provides that compliance with a request or direction received from the Director-General of an intelligence and security agency under this subpart may be made without complying with any enactment, policy, or practice that requires compliance with any criteria, standards, requirements, or process or procedure.

Clause 42 imposes restrictions on persons being permitted access to a request for assistance made under clause 37 or 39 or direction given under clause 40.

Clause 43 provides for an entity that has been conferred any legal identity, status, or capacity to 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. In order to maintain the secrecy of an agency’s activities, an exemption is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012.

Clause 44 protects from civil and criminal liability persons who comply with a request made under clause 37 or 39 or a direction given under clause 40.

Clause 45 protects from civil and criminal liability entities that have been conferred any legal identity, status, or capacity for any action taken in good faith and with reasonable care in the course of carrying out their activities and in accordance with any protections referred to in clause 38.

Part 4Authorisations

Clause 46 states the purpose of this Part. The purpose is to establish an authorisation regime for intelligence and security agencies that—

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

  • confers on an intelligence and security agency specified powers for giving effect to an authorisation.

Clause 47 defines terms used in this Part. Key terms include authorised activity, intelligence warrant, and permanent resident of New Zealand.

Clause 48 states that 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.

Clause 49 states that an intelligence and security agency may carry out an otherwise unlawful activity only if that activity is authorised. An authorised activity may lawfully be carried out by an intelligence and security agency despite anything to the contrary in any other Act.

Subpart 1—Intelligence warrants

Types of intelligence warrants

Clause 50 states there are 2 types of intelligence warrants—

  • Type 1 intelligence warrants; and

  • Type 2 intelligence warrants.

Clause 51 provides that 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—

  • a New Zealand citizen; or

  • a permanent resident of New Zealand.

Clause 52 provides that 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 New Zealand citizen; or

  • a permanent resident of New Zealand.

Application and issue of intelligence warrants

Clause 53 requires—

  • an application for a Type 1 intelligence warrant to be made by the Director-General of an intelligence and security agency to the Attorney-General and the Chief Commissioner of Intelligence Warrants; and

  • an application for a Type 2 intelligence warrant to be made by the Director-General of an intelligence and security agency to the Attorney-General.

Clause 54 provides that 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.

Clause 55 provides that a Type 1 intelligence warrant may be issued jointly by the Attorney-General and a Commissioner of Intelligence Warrants if they are satisfied of the matters specified.

Clause 56 provides that a Type 2 intelligence warrant may be issued by the Attorney-General if he or she is satisfied of the matters specified.

Clause 57 sets out the additional criteria for the issue of an intelligence warrant that must be satisfied.

Clause 58 requires the Attorney-General to consult the Minister of Foreign Affairs before issuing an intelligence warrant authorising an activity that is likely to have implications for New Zealand’s foreign policy or New Zealand’s international relations.

Clause 59 provides for the issue of joint intelligence warrants so that the Director-General of Security and the Director-General of the Government Communications Security Bureau may jointly or severally carry out the activities authorised by the warrant, and exercise all of the powers under the warrant.

Clause 60 provides that an intelligence warrant may be issued subject to restrictions or conditions that are considered desirable in the public interest by the Attorney-General and a Commissioner of Intelligence Warrants in the case of a Type 1 intelligence warrant, or by the Attorney-General in the case of a Type 2 intelligence warrant.

Clause 61 sets out the matters to be stated in an intelligence warrant. These matters include the type of intelligence warrant issued, the purpose for which the warrant is issued, and the particular activity or activities authorised to be carried out.

Clause 62 requires an intelligence warrant to specify a period not exceeding 12 months for which it is valid.

Authorised activities and powers

Clause 63 sets out the activities that may be carried out under an intelligence warrant that would otherwise be unlawful. These activities include conducting surveillance, intercepting private communications, searching, and seizing.

Clause 64 provides that an intelligence warrant may authorise the carrying out of certain activities for a purpose specified in the warrant and for reasons specified in the warrant. The persons in respect of whom and places in respect of which the activities will be undertaken do not always need to be specified.

Clause 65 sets out the powers of the New Zealand Security Intelligence Service acting under an intelligence warrant. These powers include the power to—

  • enter a place, vehicle, or other thing; and

  • install, use, maintain, or remove a visual surveillance device, a tracking device, or an interception device; and

  • access an information infrastructure, or class of information infrastructures.

Clause 66 sets out the powers of the Government Communications Security Bureau acting under an intelligence warrant. Fewer powers are listed than under clause 65; in particular the Government Communications Security Bureau does not have the power to enter a place, vehicle or thing, or to take photographs.

Clause 67 provides that an intelligence warrant does not authorise the carrying out of any activity or the exercise of any power in relation to privileged communications of a New Zealand citizen or permanent resident of New Zealand.

Requests for assistance

Clause 68 enables the Director-General of an intelligence and security agency, when carrying out an activity authorised by an intelligence warrant, to request assistance from the New Zealand Police, any person, or any other organisation. A person who assists is subject to the control of the Director-General and has the same immunities as an employee of an intelligence and security agency.

Urgent intelligence warrants

Clause 69 provides for the issue of a Type 1 intelligence warrant in a situation of urgency. A Type 1 intelligence warrant may urgently be issued by the Attorney-General and a Commissioner of Intelligence Warrants jointly or by the Attorney-General alone. In the latter case, the intelligence warrant is effective as if it had been issued by the Attorney-General and a Commissioner of Intelligence Warrants but the Attorney-General must immediately notify the Chief Commissioner of Intelligence Warrants. The Chief Commissioner of Intelligence Warrants has power to revoke the warrant at any time.

Clause 70 provides for the issue of a Type 2 intelligence warrant by the Attorney-General in a situation of urgency.

Clause 71 requires that the reasons for the urgent issue of an intelligence warrant to be recorded as soon as practicable.

Clause 72 provides that a Type 1 intelligence warrant that has been urgently issued is revoked by operation of law 48 hours after its issue unless, within that time, an application for the issue of a warrant is made in the usual way under clause 53.

Clause 73 provides that a Type 2 intelligence warrant that has been urgently issued is revoked by operation of law 48 hours after its issue unless, within that time, an application for the issue of a Type 2 intelligence warrant is made in the usual way under clause 53.

Clause 74 provides that information collected under an intelligence warrant issued under clause 69 or 70 that is subsequently revoked must be destroyed. However, any incidentally obtained intelligence may be retained under clause 91.

Clause 75 provides that an intelligence warrant issued urgently under clause 69 or 70 must be referred as soon as practicable to the Inspector-General of Intelligence and Security for review.

Amendment and revocation of intelligence warrants

Clause 76 provides for the amendment and revocation of intelligence warrants.

Authorisations by Director-General of intelligence and security agency

Clauses 77 to 81 provide for the issue of very urgent authorisations by a Director-General of an intelligence and security agency.

Clause 77 provides that if an application for the urgent issue of a Type 1 or Type 2 intelligence warrant needs to be made but the delay in making that application would defeat the purpose of obtaining the warrant, the Director-General of an intelligence and security agency may authorise the carrying out of the otherwise unlawful activity.

Clause 78 provides that an authorisation given by the Director-General of an intelligence and security agency to carry out an activity for which a Type 1 intelligence warrant is required is effective as if it were a Type 1 intelligence warrant. The Director-General must give notice of the authorisation to both the Attorney-General and the Chief Commissioner of Intelligence Warrants and within 24 hours make an application under clause 53 for the issue of a Type 1 intelligence warrant. The authorisation is revoked if that application is not made, if the Attorney-General or the Chief Commissioner of Intelligence Warrants determines, or if a Type 1 intelligence warrant is not subsequently issued.

Clause 79 similarly provides that an authorisation given by the Director-General of an intelligence and security agency to carry out an activity for which a Type 2 intelligence warrant is required is effective as if it were a Type 2 intelligence warrant. The Director-General must give notice of the authorisation to the Attorney-General and within 24 hours make an application under clause 53 for the issue of a Type 2 intelligence warrant. The authorisation is revoked if that application is not made, if the Attorney-General determines, or if a Type 2 intelligence warrant is not subsequently issued.

Clause 80 provides that, if an authorisation given by the Director-General of an intelligence and security agency is revoked, all information collected under that authorisation must be immediately destroyed. However, any incidentally-obtained intelligence may be retained under clause 91.

Clause 81 provides that an authorisation given by the Director-General of an intelligence and security agency must be referred as soon as practicable to the Inspector-General of Intelligence and Security for review.

Collection of intelligence

Clause 82 states that, in carrying out an authorised activity or in exercising any power, the 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.

Clause 83 provides that intelligence that is unintentionally collected outside the scope of an authorised activity, or in the course of providing co-operation, advice and assistance under clause 17, must be destroyed. However, it need not be destroyed if clause 91 applies, or if a Type 1 intelligence warrant or Type 2 intelligence warrant is issued authorising its collection.

Offences and immunities

Clause 84 provides that it is an offence to knowingly fail to comply with clause 74, 80, or 83. The penalty is a fine not exceeding $10,000.

Clause 85 provides that it is an offence to disclose that an activity is an authorised activity or to use or disclose information obtained from the carrying out of the authorised activity. The penalty is a fine not exceeding $10,000.

Clause 86 provides that it is an offence for a person to knowingly disclose information acquired in carrying out an authorised activity otherwise than in the course of his or her duties. The penalty is a fine not exceeding $10,000.

Clause 87 provides that an employee is immune from criminal liability for any act done in good faith if the person reasonably believed that the act was necessary to obtain an intelligence warrant, and the carrying out of the activity was done in a reasonable manner.

Clause 88 provides that a person is immune from criminal liability for any act done in good faith in carrying out an authorised activity if the person reasonably believed the act was necessary to carry out the activity, and the carrying out of the activity was done in a reasonable manner.

Register of intelligence warrants

Clause 89 requires the Director-General of an intelligence and security agency to keep a register of intelligence warrants issued to him or her. Certain information must be entered in the register in relation to each intelligence warrant, including the type of warrant issued, the particular activity or activities authorised to be carried out, and the conditions that the warrant is subject to. The register must be accessible to the Minister responsible for the intelligence and security agency, the Attorney-General, the Inspector-General of Intelligence and Security, and the Chief Commissioner of Intelligence Warrants (in relation to Type 1 intelligence warrants only).

Subpart 2—Removal warrants

Clause 90 provides that, if any device or equipment that has been installed under an intelligence warrant remains in a place or thing after the warrant has ceased to be in force, the Attorney-General may, on an application, issue a removal warrant. The removal warrant may authorise the removal of the device from the place or thing. For this purpose, a place or thing may be entered and searched and certain powers may be exercised. A removal warrant must specify the period for which it is valid, which may not exceed 12 months.

Subpart 3—Incidentally obtained intelligence

Clause 91 enables the Director-General of an intelligence and security agency to retain any incidentally obtained intelligence for the purpose only of disclosing it to specified persons in specified circumstances (for example, the Director-General may retain the intelligence for the purpose of disclosing it to the Police for the purpose of preventing or detecting a serious crime in New Zealand).

Subpart 4—Commissioners of Intelligence Warrants

Clause 92 provides for the appointment of up to 3 Commissioners of Intelligence Warrants on the recommendation of the Prime Minister. One Commissioner must be appointed Chief Commissioner of Intelligence Warrants.

Clause 93 provides that only a person who has previously held office as a Judge of the High Court may be appointed a Commissioner of Intelligence Warrants.

Clause 94 sets out the functions of a Commissioner of Intelligence Warrants. These functions include advising the Attorney-General on applications for Type 1 intelligence warrants and conducting reviews under new section 27GF of the Passports Act 1992.

Clause 95 sets out additional functions of the Chief Commissioner of Intelligence Warrants. The Chief Commissioner is to be the point of contact for all communications with Commissioners.

Clause 96 applies Part 1 of Schedule 3 (administrative provisions relating to Commissioners).

Part 5Accessing information held by other agencies

Clause 97 defines terms used in this Part. Key terms include access, agency, and holder agency.

Clause 98 sets out the relationship between Part 5 and other law relating to information disclosure.

Subpart 1—Request and disclosure of information

Clause 99 states the purpose of this subpart. The purpose is to recognise—

  • the existing ability of an intelligence and security agency to request information held by other agencies; and

  • the existing ability of an agency to disclose information to an intelligence and security agency.

This subpart does not confer on an agency any legal right or obligation.

Clause 100 provides that the Director-General of an intelligence and security agency may request information from another agency if that information is required for the performance or exercise of a function, duty, or power.

Clause 101 provides that an agency may disclose to an intelligence and security agency information that it holds if it is satisfied that the information is required by the intelligence and security agency for the purpose of performing or exercising a function, duty, or power. The disclosure of information may be made whether or not a request for the information has been received. However, this clause is subject to any other enactment that imposes a prohibition or restriction on the disclosure of information, or regulates the manner in which information may be obtained or disclosed. It is also subject to any obligation of confidence.

Subpart 2—Direct access to database information

Clause 102 states the purpose of this subpart. The purpose is to enable an intelligence and security agency to have direct access to the information listed in Schedule 2. This information is adoption information, birth information, civil union information, death information, marriage information, name change information, citizenship information, information collected under the Immigration Act 2009, and information collected under the Customs and Excise Act 1996.

Clause 103 provides that an agency holding any of this information (the holder agency) must allow the Director-General of an intelligence and security agency access to any database storing the information if that access is allowed by an agreement entered into between the Minister responsible for the intelligence and security agency and the Minister responsible for the holder agency.

Clause 104 sets out the matters the Ministers must have regard to before entering into an agreement. One of these matters is whether direct access to the information is necessary to enable the intelligence and security agency to perform or exercise a function, duty, or power.

Clause 105 provides that, before entering into an agreement, the Ministers must consult the Privacy Commissioner and the Inspector-General of Intelligence and Security.

Clause 106 specifies the matters that must be included in the content of an agreement.

Clause 107 sets out the requirements for the publication of an agreement.

Clause 108 requires an agreement to be reviewed every 3 years.

Clause 109 provides for the amendment of Schedule 2 by Order in Council.

Subpart 3—Access to restricted information

Clause 110 states the purpose of this subpart. The purpose is to enable intelligence and security agencies to access restricted information.

Clause 111 defines restricted information. Restricted information is—

  • information referred to in section 81 of the Tax Administration Act 1994:

  • information relating to national student numbers assigned to students under section 343 of the Education Act 1989:

  • photograph images used for driver licences that are stored under section 28(5) of the Land Transport Act 1998.

Clause 112 provides that a Director-General of an intelligence and security agency seeking access to restricted information must apply for permission to—

  • the Attorney-General and the Chief Commissioner of Intelligence Warrants if the person to whom the information relates is a New Zealand citizen or a permanent resident of New Zealand; or

  • the Attorney-General in any other case.

An application must state the particular restricted information in respect of which access is sought.

Clause 113 specifies the matters on which the Attorney-General and Chief Commissioner of Intelligence Warrants need to be satisfied before permitting access to restricted information relating to a New Zealand citizen or permanent resident of New Zealand.

Clause 114 specifies the matters on which the Attorney-General needs to be satisfied before permitting access to restricted information relating to a person who is not a New Zealand citizen or permanent resident of New Zealand.

Clause 115 sets out criteria that need to be satisfied before access to restricted information may be permitted under clause 113 or 114.

Clause 116 requires a permission given under clause 113 or 114 to specify the particular restricted information that may be accessed by an intelligence and security agency.

Clause 117 requires an agency holding or controlling the restricted information specified in a permission to make that information available to the Director-General of an intelligence and security agency to whom the permission was granted.

Clause 118 provides that restricted information accessed by an intelligence and security agency may only be used, retained, and disclosed by an intelligence and security agency in the performance of its functions.

Part 6Oversight of intelligence and security agencies

Clause 119 states the purpose of this Part. That purpose is to provide for the independent oversight of the intelligence and security agencies. To this end, both the office of the Inspector-General of Intelligence and Security and the Intelligence and Security Committee are continued with oversight roles.

Subpart 1—Inspector-General of Intelligence and Security

Appointment, functions, duties, and powers of Inspector-General

Clause 120 continues the office of the Inspector-General of Intelligence and Security. The Inspector-General is appointed by the Governor-General on the recommendation of the House of Representatives. Before a person may be recommended for appointment, the Prime Minister must consult the Intelligence and Security Committee about the proposed appointment and advise the House of Representatives that this consultation has been undertaken.

Clause 121 sets out the functions of the Inspector-General. These functions are substantially the same as the Inspector-General’s current functions under section 11 of the Inspector-General of Intelligence and Security Act 1996 (the IGISA). However, an inquiry undertaken by the Inspector-General into any matter relating to an intelligence and security agency’s compliance with the law, or into the propriety of an intelligence and security agency’s actions, will be able to be requested by the Intelligence and Security Committee.

Clause 122 requires the Inspector-General to submit to the Ministers each year for comment a draft work programme. The Inspector-General may amend the draft proposed programme to take account of the Ministers’ comments. A copy of the final programme must be given to the Ministers and published on the Internet.

Clause 123 re-enacts section 18 of the IGISA and affords protection to employees of intelligence and security agencies who, in good faith, bring any matter to the attention of the Inspector-General. Such employees may not suffer penalty or discrimination from their employer as a consequence of bringing matters to the attention of the Inspector-General.

Clause 124 re-enacts section 12 of the IGISA, which enables the Inspector-General to liaise with the Auditor-General to avoid inquiries being conducted by both the Inspector-General and the Auditor-General in relation to the same matter. The Inspector-General may also consult specified public office holders about any matter relating to his or her functions and disclose information necessary for the purposes of that consultation.

Clause 125 re-enacts section 15(1) and (2) of the IGISA, which provides that the exercise by the Inspector-General of his or her functions does not limit the jurisdiction of any court, or affect the lawful exercise by a Police employee of any powers in relation to an intelligence and security agency.

Clause 126 provides that if, in conducting a review of an authorisation issued or given under Part 4, the Inspector-General identifies any irregularity, that finding does not invalidate the authorisation or any action taken by an intelligence and security agency in reliance on it. The irregularity may also be reported to the Attorney-General and, in the case of an authorisation that is a Type 1 intelligence warrant, to the Chief Commissioner of Intelligence Warrants.

Appointment, functions, duties, and powers of Deputy Inspector-General

Clause 127 continues the office of the Deputy Inspector-General of Intelligence and Security. The Deputy Inspector-General is appointed by the Governor-General on the recommendation of the House of Representatives. Before a person may be recommended for appointment, the Prime Minister must consult the Intelligence and Security Committee about the proposed appointment and advise the House of Representatives that this consultation has been undertaken.

Clause 128 sets out the functions, duties, and powers of the Deputy Inspector-General.

Administrative provisions

Clause 129 provides that the provisions in Part 2 of Schedule 3 apply in relation to the Inspector-General and Deputy Inspector-General. These provisions deal with administrative matters such as term of office, vacancies, and remuneration.

Advisory panel

Clause 130 continues the advisory panel established under section 15A of IGISA.

Clause 131 re-enacts section 15B of the IGISA, which sets out the functions of the advisory panel. The functions of the advisory panel are to provide advice to the Inspector-General and to report to the Prime Minister on any matter relating to intelligence and security that it considers should be drawn to the attention of the Prime Minister.

Clause 132 substantially re-enacts section 15C of the IGISA and sets out the membership of the advisory panel. The Inspector-General is no longer to be a member of the panel. The panel is to consist of 2 members only, appointed by the Governor-General on the recommendation of the Prime Minister after consultation with the Intelligence and Security Committee. There is no longer the requirement that one of the members be a lawyer.

Clause 133 provides that the provisions in Part 3 of Schedule 3 apply in relation to the advisory panel. Those provisions deal with administrative matters such as term of office, remuneration, and the procedure of the advisory panel.

Clause 134 provides that a complaint may be made to the Inspector-General by—

  • a New Zealand person alleging 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; or

  • an employee or former employee of an intelligence agency alleging that he or she has or may have been adversely affected by any act, omission, practice, policy, or procedure of an intelligence agency in any case where all established internal remedies have been exhausted or the chief executive of the agency otherwise agrees; or

  • the Speaker of the House of Representatives on behalf of 1 or more members of Parliament alleging that the House has or may have been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency.

The provision re-enacts section 11(1)(b), (ba), and (5) of the IGISA.

Clause 135 provides that complaints may be made orally or in writing, but if made orally must be subsequently confirmed in writing.

Clause 136 provides that as soon as practicable after receiving a complaint, the Inspector-General must decide whether to conduct an inquiry in respect of the complaint and advise the complainant of his or her decision.

Clause 137 sets out the circumstances in which the Inspector-General may decide not to conduct, or continue to conduct, an inquiry in respect of a complaint. The circumstances in which the Inspector-General may decide not to inquire into a complaint include where the complaint is trivial, frivolous, vexatious, or not made in good faith. In any case where the Inspector-General decides not to continue to conduct an inquiry in respect of a complaint, the Inspector-General must inform the complainant of that decision.

Procedure for inquiries

Clause 138 provides that on commencing an inquiry the Inspector-General must give the chief executive of the relevant intelligence and security agency notice of the inquiry and, if relevant, a copy of the complaint to which the inquiry relates. If the inquiry was commenced not by a complaint but on the Inspector-General’s own initiative, the Inspector-General must also inform the Minister responsible for the relevant intelligence and security agency.

Clauses 139 to 146 re-enact existing sections 19 to 24, 25(3), and 26 of the IGISA and relate to the procedures and powers of the Inspector-General when conducting inquiries. These clauses—

  • provide for the obtaining of information by the Inspector-General:

  • confer powers of entry to places occupied or used by an intelligence and security agency:

  • provide for the protection and privileges of witnesses appearing before the Inspector-General.

Clause 147 re-enacts sections 11(6) and 25(1), (2), and (8) of the IGISA and provides that the Inspector-General must, after completing an inquiry, report his or her conclusions to the complainant and, together with any recommendations, to the Minister and Director-General of the intelligence and security agency to which the inquiry related. This clause also provides that the Inspector-General must also forward his or her report to the Intelligence and Security Committee if the inquiry was conducted at the request of the Committee, or on the Inspector-General’s own initiative, or if the Minister or Prime Minister agrees.

Clause 148 re-enacts section 25(5) of the IGISA and provides that the Inspector-General may report to the Minister on the compliance by an intelligence and security agency with the recommendations in the Inspector-General’s report, and on the adequacy of any remedial or preventative measures taken by the agency following an inquiry.

Clause 149 re-enacts section 25(6) and (7) of the IGISA and requires the Minister, after receiving a report from the Inspector-General, to provide a response to the Minister and the chief executive of the intelligence and security agency to which the inquiry related. This clause also provides that the Minister may forward his or her response to the Intelligence and Security Committee.

Clause 150 re-enacts section 25A of the IGISA which provides for the publication of an Inspector-General’s report.

Clause 151 re-enacts section 25(4) of the IGISA and requires that when the Inspector-General has completed an inquiry he or she must return all documents and materials belonging to an intelligence and security agency. All other documents and things relating to an inquiry must either be kept in safe custody or disposed of in accordance with the requirements applying to intelligence and security agencies.

Clause 152 re-enacts section 19(9) of the IGISA and provides that a proceeding, report, or finding of the Inspector-General may not be challenged, reviewed, quashed or questioned in any court, except on the ground of lack of jurisdiction.

Clause 153 re-enacts section 29 of the IGISA and prohibits the publication or broadcast of certain matters relating to an inquiry.

Subpart 2—Intelligence and Security Committee

Continuation of Intelligence and Security Committee

Clause 154 continues the Intelligence and Security Committee.

Clause 155 sets out the functions of the Committee, which replicate the Committee’s existing functions in section 6 of the Intelligence and Security Committee Act 1996 (the ISCA) and add one further function. The Committee may request the Inspector-General to inquire into an intelligence and security agency’s compliance with New Zealand law or into the propriety of particular activities of an agency.

Clause 156 sets out the membership of the Committee. The Committee must comprise at least 5, but no more than 7 members. The members comprise the Prime Minister, the Leader of the Opposition, members nominated by the Prime Minister, and members nominated by the Leader of the Opposition.

Clause 157 specifies how a vacancy in the membership of the Committee is to be filled.

Clause 158 requires the House of Representatives to endorse nominated members.

Clause 159 provides that the Committee may not transact business until the nominated members have been endorsed.

Clause 160 re-enacts section 7(3) and 7A(1)–(3) of the ISCA and provides that it is generally the Prime Minister who chairs the Committee.

Clause 161 provides that the provisions in Part 4 of Schedule 3 apply in relation to the Committee. Those provisions deal with the membership and procedure of the Committee.

Evidence

Clause 162 re-enacts section 14 of the ISCA and provides that the Committee may require persons to attend before it.

Clause 163 re-enacts section 17 of the ISCA and deals with the provision of information to the Committee and the safe keeping of that information by the Committee.

Clause 164 re-enacts section 19 of the ISCA and prohibits persons appointed to assist the Committee from disclosing certain information, including sensitive information.

Part 7Miscellaneous provisions

Ministerial policy statements

Clause 165 requires the Minister responsible for an intelligence and security agency to issue ministerial policy statements for covert activities under Part 3 in relation to—

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

  • acquiring, using, and maintaining an assumed identity:

  • creating and maintaining a legal entity.

Clause 166 requires the Minister responsible for an intelligence and security agency to issue ministerial policy statements providing guidance to the intelligence and security agency in relation to—

  • co-operating with an overseas public authority:

  • providing advice and assistance to an overseas public authority:

  • sharing intelligence with an overseas public authority.

Clause 167 enables the Minister responsible for an intelligence and security agency to issue other ministerial policy statements providing guidance to an intelligence and security agency in relation to any other matter.

Clause 168 states the matters that a ministerial policy statement must contain.

Clause 169 requires a Minister to undertake consultation with certain persons, including the Inspector-General, before issuing a ministerial policy statement.

Clause 170 provides for ministerial policy statements to be amended, revoked, or replaced by the Minister in consultation with certain other persons.

Clause 171 enables a ministerial policy statement to be issued applying to both intelligence and security agencies.

Clause 172 provides that a ministerial policy statement takes effect when it is signed by the issuing Minister and continues in effect for up to 3 years.

Clause 173 provides for the publication of ministerial policy statements. The Director-General of the intelligence and security agency to which a ministerial policy statement applies must make it publicly available on an Internet site.

Clause 174 confirms that a ministerial policy statement is not, for the purposes of the Legislation Act 2012, a legislative instrument or a disallowable instrument. MPSs are neither legislative nor disallowable instruments because they do not have legislative effect, but rather are intended to provide guidance as to how lawful activities may be carried out. Failure to comply with a MPS does not make the activity unlawful.

Security records

Clause 175 re-enacts section 20 of the IGISA and provides for the Inspector-General to have access to security records.

Clause 176 re-enacts section 26 of the IGISA and provides that the Inspector-General, the Deputy Inspector-General, an employee of the Inspector-General, and a member of the advisory panel, must not disclose to any other person security records or other official information relating to the activities of an intelligence and security agency. Disclosure of information relating to the activities of an intelligence and security agency may, however, be made to the Minister responsible for that agency.

Confidentiality

Clause 177 re-enacts existing provisions that require office holders, employees and contractors to keep confidential all information that comes to their knowledge in the performance or exercise of their functions, duties, and powers, and not to record, use, or disclose that information except for the purpose of carrying out their functions or duties.

Security clearance information

Clause 178 provides that information that the New Zealand Security Intelligence Service has for the purposes of a security clearance assessment may only be used for the purposes of that assessment, any other security clearance assessment, or counter-intelligence. This provision overrides information privacy principle 10 in section 6 of the Privacy Act 1993.

Annual reports

Clause 179 re-enacts section 4J of the New Zealand Security Intelligence Service Act 1969 and section 12 of the Government Communications Security Bureau Act 2003 and provides for the preparation and publication of the annual reports of the intelligence and security agencies. In addition to the information required by section 45 of the Public Finance Act 1989 to be included in an annual report, subclause (2) sets out other information that agencies will now need to include. For example, agencies will now need to include in their reports a statement as to the number of applications made for a Type 1 intelligence warrant, and the number of those applications approved or declined.

Clause 180 re-enacts section 27 of the IGISA and provides for the preparation and publication of the Inspector-General’s annual report.

Clause 181 requires the Intelligence and Security Committee to present an annual report to the House of Representatives on the activities of the Committee, and to make all annual reports publicly available.

Clause 182 re-enacts section 18 of the ISCA and restricts what the Committee may disclose in its annual report.

Offences

Clause 183 re-enacts section 23(8) of the IGISA and provides that it is an offence to obstruct, hinder, or resist the Inspector-General in the exercise of his or her powers, or to refuse or wilfully fail to comply with any lawful requirement of the Inspector-General. The penalty on conviction is a fine not exceeding $5,000.

Clause 184 makes it an offence to do any of the following without reasonable excuse—

  • pretend to be an employee of an intelligence and security agency:

  • assume the name, designation, or description of an employee of an intelligence and security agency.

The penalty on conviction is a term of imprisonment of 12 months or a fine not exceeding $15,000, or both.

Clause 185 re-enacts section 13A of the New Zealand Security Intelligence Service Act 1969 and makes it an offence for a person, without the written consent of the Minister responsible for the intelligence and security agency, to publish, broadcast, or otherwise distribute and disclose the fact that a person is an employee of an intelligence and security agency (other than the Director-General of an intelligence and security agency). The penalty on conviction is a fine not exceeding $5,000 in the case of an individual, or a fine not exceeding $20,000 in the case of a body corporate.

False or misleading representations about employment

Clause 186 allows an employee of an intelligence and security agency to make a false or misleading representation about his or her employment if the representation is made for the purpose of keeping secret the fact that he or she is an employee of the agency. The representation may only be made in accordance with any requirements of the Director-General of the agency.

Clause 187 provides an immunity and other protections to the employee in relation to the false or misleading representation.

Exceptions and immunities

Clause 188 provides an exception from criminal liability for an employee in respect of the offence of receiving under the Crimes Act in certain cases where the employee receives unsolicited information. Clause 188 also restricts an intelligence and security agency disclosing unsolicited information that it obtains.

Clause 189 provides an exception from criminal liability for an employee of the New Zealand Security Intelligence Service for breaches of Parts 3, 5, and 6 of the Land Transport( Road User) Rule 2004 where the employee reasonably needs to take that action to continue visual surveillance from a vehicle in a public road. The employee is required to take all reasonable steps to ensure that his or her actions do not cause injury or damage or interfere with any other person.

Clause 190 provides that where a question about whether an immunity under the Bill applies in a particular situation, the employee or entity concerned must establish, on the balance of probabilities, that the immunity applies. Clause 90 also provides that, in the event of an inconsistency between the immunities provided by the Bill and immunities under any other enactments, the provision of the Bill prevail.

Intelligence functions of Chief Executive of Department of the Prime Minister and Cabinet

Clause 191 sets out the functions of the Chief Executive of the Department of the Prime Minister and Cabinet in relation to intelligence assessments.

Clause 192 provides that in performing the functions in clause 191 the Chief Executive must act independently.

Periodic reviews

Clause 193 provides for periodic reviews of this legislation. The first review must be commenced 5 years after the legislation comes into force, and subsequent reviews must be held at intervals not shorter than 5 years and not longer than 7 years.

Clause 194 provides for the appointment of 2 reviewers by the Prime Minister and for the Prime Minister to specify the terms of reference.

Clause 195 provides for the provision of information to the reviewers.

Clause 196 requires the reviewers to prepare a report at the conclusion of their review and for this report to be provided to the Intelligence and Security Committee and subsequently presented to the House of Representatives.

Clause 197 provides for the reviewers to receive remuneration at a rate and of a kind determined by the Prime Minister in accordance with the Government fees framework.

Clause 198 provides that the Ministry of Justice is responsible for providing the reviewers with administrative, secretarial, and other necessary support.

Clause 199 provides that the reviewers may determine their own procedure.

Part 8Repeals and amendments

Clause 200 repeals the following Acts, which are replaced by the Bill:

  • New Zealand Security Intelligence Service Act 1969:

  • Intelligence and Security Committee Act 1996:

  • Inspector-General of Intelligence and Security Act 1996:

  • Government Communications Security Bureau Act 2003.

Amendments to Births, Deaths, Marriages, and Relationships Registration Act 1995

Clause 201 to 205 relate to the Births, Deaths, Marriages, and Relationships Registration Act 1995 (the Act). The substantive amendment is to section 65 of the Act. Currently, under section 65 the Minister in charge of the New Zealand Security Intelligence Service can request the Minister responsible for the administration of the Act to create new identity information. This provision is amended to enable the Director-General of either of the intelligence and security agencies to request the creation of new identity information. If, on receiving a request, the Minister responsible for the administration of the Act is satisfied of the matters in clause 29(1) of this Bill, the Minister may direct the Registrar-General to create the new identity information requested. Consequential amendments are made to sections 2, 75F, and 78 of the Act.

Amendments to Crimes Act 1961

Clauses 206 to 208 relate to the Crimes Act 1961 (the Act). A new section 78AA is inserted in the Act similar to existing section 78A of the Act. Existing section 78A of the Act is an offence provision relating to the wrongful communication, retention, or copying of official information. New section 78AA mirrors this provision in respect of classified information and applies to persons who hold, or have held, a New Zealand Government-sponsored national security clearance to access classified information and to persons to whom classified information has been disclosed in confidence. The consent of the Attorney-General will be required to prosecute this new offence.

Amendments to Education Act 1989

Clauses 209 and 210 relate to the Education Act 1989 (the Act). Section 346 of the Act is amended so that it is not an offence to use or disclose a person’s national student number if required to do so by clause 117 of the Bill (access to restricted information must be provided if permitted).

Amendments to Electronic Identity Verification Act 2012

Clauses 211 and 212 relate to the Electronic Identity Verification Act 2012 (the Act). Section 12 of the Act, which enables certain individuals to have more than 1 electronic identity credential, is amended to apply also to employees of the Government Communications Security Bureau. This amendment is necessary because of the amendment to section 65 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (see clauses 201 to 205).

Amendment to Employment Relations Act 2000

Clauses 213 and 214 relate to the Employment Relations Act 2000 (the Act). A new section 172A is inserted in the Act to provide that when any matter coming before the Employment Relations Authority relates to or arises from a recommendation of the New Zealand Security Intelligence Service about whether an individual should be granted a security clearance, the Inspector-General must be requested to prepare a report on the recommendation (if the Inspector-General has not done so already). The parties are entitled to receive a copy of the Inspector-General’s report and to make submissions on it. The Employment Authority must have regard to the report before making a determination.

Amendments to Immigration Act 2009

Clauses 215 to 229 relate to the Immigration Act 2009 (the Act). There are 4 substantive changes to the Act as follows:

  • section 96 is replaced so that the chief executive of the Ministry of Business, Innovation, and Employment may request a carrier or person in charge of a commercial craft to collect advance passenger processing information from persons travelling to, or from, New Zealand. Currently, advance passenger processing information is collected only from persons travelling to New Zealand:

  • a new section 97A is inserted in the Act that enables the chief executive to decide that a person intending to travel from New Zealand may not board a craft, or may board a craft subject to conditions, and to notify the carrier or the person in charge of the craft accordingly. This provision corresponds to section 97 of the Act, which empowers the chief executive to make decisions about persons intending to board a craft for the purpose of travelling to New Zealand:

  • section 102 of the Act is amended to require a carrier, or a person in charge of a commercial craft, to provide to the chief executive other prescribed information about persons intending to travel from New Zealand (including persons who did not board the craft):

  • new sections 303A to 303C are inserted in the Act to enable the Ministry of Business, Innovation, and Employment to provide information to a specified agency (the New Zealand Police, the Department of Corrections, the New Zealand Customs Service, and the Civil Aviation Authority of New Zealand) so that the agency has a longer period of time to identify any person of interest who is intending to board a craft to travel from New Zealand and to exercise any functions or powers in relation to that person before he or she departs from New Zealand.

Amendments to Land Transport Act 1998

Clauses 230 to 232 amend the Land Transport Act 1998 (the Act). Section 24A of the Act is amended to enable the Director-General of either intelligence and security agency to request the New Zealand Transport Agency to create and issue a driver licence for an assumed identity (currently only the Director of Security can make such request). As with the amendments to the Births, Deaths, Marriages, and Relationships Registration Act 1995 (see clauses 201 to 205), and to the Electronic Identity Verification Act 2012 (see clauses 211 and 212), this amendment is necessary because of the provisions in subpart 1 of Part 3 of the Bill.

Section 200 of the Act is also amended. This section restricts who may have access to photograph images used for driver licences, and is amended to reflect that the Director-General of an intelligence and security agency may be permitted access to these images under subpart 3 of Part 5 of the Bill.

Amendments to Passports Act 1992

Clauses 233 to 261 relate to the Passports Act 1992 (the Act). The temporary provisions inserted in the Act by the Passports Amendment Act 2014 (sections 45 and 46 and Schedule 2 of the Act) expire on 31 March 2017. The purpose of the amendments in clauses 234 to 261 is to continue those provisions beyond this date. The continuation of the provisions is without interruption as the transitional provision in section 46 of the Act (inserted by the Passports Amendment Act 2014) is repealed.

The effect of the amendments is to extend the Minister’s powers, on the grounds of national security, to—

  • refuse to issue a passport:

  • cancel a passport:

  • cancel a certificate of identity:

  • cancel an emergency travel document:

  • refuse to issue a refugee travel document:

  • cancel a refugee travel document.

The amendments also provide for the temporary suspension of these New Zealand travel documents, clarify the application of sections 29AA to 29AC in respect of these provisions, and limit Crown liability for certain decisions taken under the provisions. There is 1 substantive policy change implemented in the amendments. If the Minister of Internal Affairs decides to cancel or refuse to issue a New Zealand travel document, the Minister must notify the Chief Commissioner of Intelligence Warrants. After receipt of all relevant documents, the Chief Commissioner must review the Minister’s decision and prepare a report if he or she considers that the decision is not supported by the documentation. That report must recommend the Minister reconsider his or her decision and state the reasons for that recommendation. The Minister must then reconsider his or her decision and confirm, vary, or revoke it. In any case where the Minister reviews his or her decision, the person affected by that decision must be notified of the Chief Commissioner’s recommendation and the outcome of the Minister’s reconsideration.

Amendments to Privacy Act 1993

Clauses 262 to 264 relate to the Privacy Act 1993 (the Act). Three amendments are made to the Act as follows:

  • information privacy principle 10 in section 6 of the Act is amended to include a further exception. This further exception will allow an agency holding personal information to use that information for a different purpose from the purpose for which it was obtained if the agency believes on reasonable grounds that the different purpose is necessary to enable an intelligence and security agency to perform a statutory function:

  • information privacy principle 11 in section 6 of the Act is amended to include a further exception. This further exception will allow an agency holding personal information to disclose the information if the agency believes on reasonable grounds that the disclosure is necessary to enable an intelligence and security agency to perform a statutory function:

  • section 57, which provides that only information privacy principles 6 and 7 apply to intelligence and security agencies, is replaced. All of the information privacy principles will now apply to intelligence and security agencies, except information privacy principles 2, 3, and 4(b). This will mean, for example, that intelligence and security agencies must not collect personal information by any unlawful means, and may only use and disclose personal information in accordance with information privacy principles 10 and 11.

Amendments to Protected Disclosures Act 2000

Clauses 265 to 267 relate to the Protected Disclosures Act 2000 (the Act). Section 12 of the Act requires the internal procedures of an intelligence and security agency to contain certain rules about whom disclosures may be made to. A new section 12 extends the application of this provision to any other organisation in the public sector that holds or has access to classified information, or information relating to the activities of an intelligence and security agency. Section 13 is also replaced with a new provision that does not include reference to intelligence and security (as this is now covered by new section 12).

Amendments to Public Finance Act 1989

Clauses 268 to 271 relate to the Public Finance act 1989 (the Act). The definition of department in section 2 of the Act is amended to recognise that the New Zealand Security Intelligence Service is now a department so no longer needs to be separately identified. Section 15A of the Act is amended so that intelligence and security agencies will no longer be exempt from the requirement to provide a concise explanation of what an appropriation is intended to achieve. Section 45E of the Act is amended to remove some of the exemptions currently applying to intelligence and security agencies.

Amendments to Search and Surveillance Act 2012

Clauses 272 to 274 relate to the Search and Surveillance Act 2012 (the Act). The effect of the amendments is to extend the application of section 25 of the Act so that a constable may, without a warrant, carry out a search if there are reasonable grounds to suspect that an offence against new section 78AA of the Crimes Act 1961 (inserted by clause 207) has been, is being, or will be committed and that there is great urgency requiring immediate action.

Amendments to State Sector Act 1988

Clauses 275 to 277 relates to the State Sector Act 1988 (the Act). Schedule 1 of the Act is amended to list the New Zealand Security Intelligence Service as a department. A consequential amendment is made to section 44 of the Act.

Amendment to Tax Administration Act 1994

Clauses 278 and 279 relate to the Tax Administration Act 1994 (the Act). Section 81 of the Act is amended so that an Inland Revenue officer may communicate information to the Director-General of an intelligence and security agency if required to do so under clause 117 of the Bill (access to restricted information must be provided if permitted).

Consequential amendments

Clause 280 gives effect to Schedule 4, which makes consequential amendments to other enactments.

Schedules

Schedule 1 sets out transitional, savings, and related provisions.

Schedule 2 sets out the databases accessible to intelligence and security agencies under subpart 2 of Part 5.

Schedule 3 sets out administrative provisions applying to Commissioners of Intelligence Warrants, the Inspector-General and Deputy Inspector-General, the advisory panel, and the Intelligence and Security Committee.

Schedule 4 sets out consequential amendments to other enactments.