NZ spy agencies bill flies over first hurdle in Parliament

The Attorney General, Chris Finlayson, left, and Prime Minister John Key announcing changes to intelligence agencies this week. Photo Mark Mitchell

A bill that will allow New Zealand's foreign intelligence agency, the GCSB, to spy on Kiwis when national security is at stake passed its first reading this afternoon with the overwhelming support of Parliament.

However the definition of what constitutes "national security" is yet to be determined.

Labour, New Zealand First, Act and the Maori Party joined National in supporting the New Zealand Intelligence and Security Bill.

Only the Greens and United Future's Peter Dunne voted against sending the bill to the foreign affairs select committee.

The bill would place the Government Communication Security Bureau and the Security Intelligence Service under the same empowering legislation and both would be covered by the same warranting regime.

The Minister in charge of the agencies, Christopher Finlayson, said that under the bill, New Zealanders would be targeted by the GCSB only on "national security" grounds - unless that person was an agent of a foreign power. In that instance, the GCSB already has the powers to spy on them.

Finlayson invited the committee to have a "robust debate" about the definition of "national security."

Unusually he said the definition in the bill - taken from the Michael Cullen-Patsy Reddy review of the agencies - was "unworkable" and that an alternative suggested by officials was a good starting point.

"We have adopted the reviewers' proposal for the bill's introduction solely so the committee can consider the matter rather than ministers make a decision before introduction."

Under the reviewers' definition, the one Finlayson says is unworkable, "national security" means the protection against:
• Threats or potential threats, to New Zealand's status as a free and democratic society from unlawful acts or foreign interference;
• Imminent threats to the life and safety of New Zealanders overseas;
• Threats or potential threats that may cause serious harm to the safety or quality of life of the New Zealand population;
• Unlawful acts, or acts of foreign interference, that may cause serious damage to New Zealand's economic security or international relations;
• Threats or potential threats to the integrity of information or infrastructure of critical importance to New Zealand;
• Threats or potential threats that may cause serious harm to the safety of a population of another country as a result of unlawful acts by a New Zealanders that are ideologically, religiously, or politically motivated;
• Threats or potential threats to international security.

Finlayson said that the Parliamentary Counsel Office, law drafters, and the Department of Prime Minister and Cabinet had serious issues with that definition being too complex.

Labour leader Andrew Little questions the role of the Attorney-General in issuing warrants. Photo Mark Mitchell

Officials have suggested that a better approach would be to avoid defining national security and instead to list the types of activities and threats that would be covered.

In their alternative, they list 13 activities including: terrorism or violent extremism; espionage or other foreign intelligence activity; sabotage; activities relevant to serious crime and which involve the movement of money, goods or people; the use or transfer of intellectual property; damage to New Zealand's international relations or economic security; threats to or interference with information or information infrastructure of importance to the NZ Government; threats to New Zealand Government operations in New Zealand or abroad; threats to New Zealand's sovereignty including its territorial border integrity and system of Government; and threats to the life or safety of New Zealanders.

Labour leader Andrew Little thanked Finlayson for his bipartisan approach to the legislation and said he had conducted himself with "considerable distinction".

But he questioned whether there would be difficulties having the Attorney General (a position held by Finlayson) issuing warrants when the same person was responsible for the Crown Law office which was responsible for Crown prosecution.

"Is it right that the Attorney-General should be the one exercising, in whole or in part, the power to issue a warrant, which can lead to the gathering of information or evidence, which can lead to a prosecution, which may then be under the oversight of the Crown Law Office? It looks to me, on the face of it, that there is a conflict."

Little said that would need to be examined closely by the select committee.