The Green Party wishes to be heard in support of its submission. Party Co-Leader Rod Donald MP is available to appear before the Committee in either Christchurch or Wellington. He can be contacted care of Parliament Buildings, Wellington.

Intelligence and Security Committee

The Green Party believes the very existence of this committee denigrates Parliament. We are strongly of the view that this Bill should have been referred to a Parliamentary Select Committee rather than to a "foreign body".

It is highly inappropriate for a non-parliamentary committee which includes the Minister in charge of the Security Intelligence Service, two of the Minister's nominees, and a nominee from the Leader of the Opposition approved by the Minister, as well as the Leader of the Opposition, to be considering a Bill to extend the powers of the Security Intelligence Service.

The situation is even more unacceptable when only two parliamentary parties representing less than two-thirds of the membership in Parliament make up the whole committee.

This Bill is the first piece of legislation that Parliament has ever sent to a statutory committee. While the Intelligence and Security Committee Act bars Parliamentary Select Committees from examining the policy, administration or expenditure of any Intelligence and Security Agency, the referral of the Bill to this committee was a government decision and is not required by statute.

The Green Party therefore recommends that this committee refer the Bill back to the House with a request that it be heard by a Parliamentary Select Committee.

Public Consultation

The Green Party is concerned that a Bill of this significance was rushed into Parliament immediately prior to the Christmas recess, with interested organisations and members of the public being given an extremely short time to prepare submissions.

While the Government might argue that the timing of the Bill's introduction was dictated by the Court of Appeal decision, Choudry vs Attorney General, there are no grounds for closing submissions at the end of January, especially as the Bill is retrospective.

The handling of this Bill parallels the handling of the Bill to establish this very committee. It was also introduced just prior to Christmas and also gave little time for people to make submissions.

We are also concerned that minimal effort was made to advise the public of this Bill, with only one public notice calling for submissions being lodged on a Wednesday, two days before Christmas.

The Green Party therefore recommends that more time be allowed for the public to make submissions.

Intent of Bill

The Prime Minister, in her press release announcing the government's intention to introduce this Bill, said "It is vital that the NZSIS is able to carry out its functions properly in gathering intelligence on security threats to New Zealand. In some rare instances this may require covert entry to private property, which the amendment to the legislation will allow. The existing law had been presumed to allow this to occur."

The Court of Appeal ruling makes it clear that a power of entry or breaking and entering of private premises is not implicit in the existing legislation. The Court also observed that "It is not without significance that the relevant statutory provisions affecting the counterparts of the SIS in Australia, Canada and United Kingdom, all now make express provision for warrants authorising entry on private property."

Further, they say "Those statutes recognise the important constitutional consideration that at common law, every invasion of private property is a trespass and any intended erosion of the protection of the common law should be spelt out in the plainest terms..."

This Bill is therefore extremely significant. While the Government claims that it simply confers on SIS officers express powers that they assumed they had, the fact that legislation is only now being introduced to achieve this despite Australia passing equivalent legislation in 1979, Canada in 1984, and the United Kingdom in 1995, indicates that the New Zealand government should have known that its agents had been acting illegally. Legalising breaking and entering by the SIS and their contractors should not be enacted just because other countries have done so.

It is certainly outrageous for National and Labour politicians to now claim that the 1977 SIS Amendment Act gave the SIS the right to legally break into people's homes. There was no express provision made in that amendment, and not one Government Minister or MP made any such claim in Parliament. In fact, Government MP Barry Brill said in the House, "The Bill does not extend the powers of the Prime Minister and the SIS; it restricts the powers."

The 1998 Bill must be considered in the context of the definition of "security" which was significantly extended in 1996 by adding "making of a contribution to New Zealand's international well-being or economic well-being" to the existing "protection of New Zealand from acts of espionage, sabotage, terrorism, and subversion, whether or not they are directed from or intended to be committed within New Zealand".

Security is defined in the Act but there are no definitions for "international well-being" and "economic well-being". This contrasts with explicit definitions for "espionage", "sabotage", "terrorism", and "subversion".

This is a serious deficiency in the Act as the absence of definitions for "international well-being" or "economic well-being" make their
interpretation subject to political bias.

At the time of the 1996 hearings this view was considered to be naïve and paranoid. The bungled SIS break-in to the Christchurch home of prominent anti-free-trade activist Aziz Choudry barely six months later confirms that these serious concerns are justified.

The fact that the Act includes a section that the SIS will not institute surveillance of any person engaging in lawful advocacy, protest or dissent, is clearly meaningless.

The subsequent investigation of the break-in by the Inspector General of Intelligence and Security confirmed that the assurance that lawful dissent would not lead to surveillance is totally useless. In his report, he would not even confirm or deny that the SIS were involved.

His inability to act as an effective watchdog in this case destroys any expectation of independent scrutiny of the SIS and any confidence that there are any safeguards for people engaged in lawful advocacy, protest, or dissent.

The retrospective nature of the Bill confirms that the SIS has been illegally breaking into private property.

If passed, this would stop any group or individual from seeking legal redress in the future as the result of information becoming available that may implicate the SIS in past break-ins, interceptions or seizures.

Denying people the right to pursue their legitimate concerns, either through the courts or with the Inspector General of Intelligence and Security, is an insult to democracy.

Supporters of this Bill dismiss opposition to it by referring to the small number of interception warrants issued to the SIS. While the number of warrants issued in each of the last 20 years has varied between two and nine, some of these warrants have been in effect for long periods of time, given that the maximum average length of warrants was eight months and 11 days (1981).

More significantly, while the number of warrants may be small, the law clearly allows for a warrant to cover a number of people or even a whole organisation. The five warrants issued in 1981 could have been used, for example, to break into the private property of thousands of New Zealanders involved in the Anti-Tour Movement in order to bug their communications or seize documents.

The infamous List of 20 Subversives supplied to Prime Minister Muldoon by the SIS at the time of the Springbok Tour confirms there was widespread (and inaccurate) surveillance of legitimate protestors.

What's more, the SIS clearly regarded many individuals and organisations engaged in those protests as subversive. I intend to table at the hearing a letter from the SIS which supports this assertion.

The Prime Minister is also only required to report to Parliament on warrants issued under Subparagraph (i) of Paragraph (a) of Subsection (1) of Section 4A of the Security Intelligence Service Act. Warrants issued under Subparagraph (ii) of the same section "for the purpose of gathering foreign intelligence information essential to security" do not have to be reported. Conceivably there could be many more warrants issued to intercept or seize foreign intelligence within New Zealand.

With the Cold War well and truly over, the powers of the SIS should, at the very least, be reduced, not expanded. The SIS certainly should not have the power to break into our homes.

The Green Party therefore recommends that the Intelligence and Security Committee report to the House that this bill not be passed.

Analysis of Bill Interpretation

The Bill omits to define "thing" even though "a thing" "any thing" and "things" are central to the meaning of Clause 3 of the Bill, particularly 3C, 3D and 3E. While the general policy statement and the explanatory note implied that in Clause 3D a "thing" is a device and that in Clause 3E a "thing" is a material object, the Bill should be explicit.

The Bill should also include a definition of "international well-being" and "economic well-being" if these terms are to remain in the definition of security as their interpretation should not be subject to political whim.

Issue of Interception Warrants

The Bill makes it legal for a person authorised by an interception warrant to break into and enter any place, whether or not that place or those who own or occupy that place, have any relationship at all with the person or persons whose communications are being sought.

This is an extraordinarily extensive provision which enables the SIS to justify invading the privacy of every person in New Zealand and removes any legal protection they have from that invasion. Such a blanket provision is outrageous and unnecessary when sophisticated technology is available to intercept communications without needing to act like a common thieves.

This provision contrasts with the expectation that a warrant to seize documents or things must specify the place to be entered. However, that restriction is of little consolation when entry can already be justified under the interception clause.

Further Recommendations

The Green Party believes that the SIS should be stopped from spying on people solely because they hold different views from the government on what is in New Zealand's "international well-being or economic well-being".

The Green Party therefore recommends that these terms should be deleted from the definition of security;

The Green Party believes that Parliament is the rightful place to examine the policy, administration, and expenditure of intelligence and security agencies.

The Green Party therefore requests that this Committee recommend the Intelligence and Security Committee Act be repealed;

The Green Party believes that it may be more appropriate for the police to have the responsibility for protecting New Zealand from "acts of espionage, sabotage, and terrorism".

The Green Party therefore requests that an enquiry into whether the SIS should be abolished should be conducted by a Select Committee of Parliament.