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New Zealand Security Intelligence Services Amendment Bill (Consistent) (Section 21) [2010] NZBORARp 74 (11 October 2010)

Last Updated: 11 May 2020

New Zealand Security Intelligence Services Amendment Bill

11 October 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: NEW ZEALAND SECURITY INTELLIGENCE SERVICES AMENDMENT BILL

1. We have considered whether the New Zealand Security Intelligence Services Amendment Bill (PCO 999/4.0) (the “Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (the “Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 14

October 2010.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

In reaching that conclusion, we have considered a potential issue of inconsistency of the Bill with s 21 (unreasonable search and seizure) of the Bill of Rights Act. Our analysis is set out below.

PURPOSE OF THE BILL

3. The Bill seeks to amend the interception warrant framework in the New Zealand Security Intelligence Services Act 1969 (the “Act”) to address technology changes and to ensure consistency with other legislation. In particular, the Bill proposes to:

• clarify the authority given to the Security Intelligence Service to use modern technology in the performance of its functions

• enhance the responsiveness of the Service by streamlining the requirements for the

issue of warrants

• clarify the nature of the protection from liability given to persons executing warrants issued under the Act.
  

The Bill also renames interception warrants as intelligence warrants, and a number of amendments are made as a consequence.

UNREASONABLE SEARCH AND SEIZURE

• Section 21 of the Bill of Rights Act provides the right to be secure against unreasonable search and seizure. There are two limbs to the s 21 right. First, s 21 is applicable only in respect of those activities that constitute a ‘search or seizure’. Secondly, where certain actions do constitute a search or seizure, s 21 protects only against those searches or seizures that are ‘unreasonable’ in the circumstances.
• The current framework for the issuance of intelligence warrants (which, as indicated above, were formally known as interception warrants) was introduced as part of the New Zealand Security Intelligence Services Amendment Act 1999, and advice was given at that time that the framework was consistent with the Bill of Rights Act.

• The Bill proposes a number of amendments to the intelligence warrant framework.

Section 4A of the Act sets out the circumstances in which an intelligence warrant can be issued. Clause 6 of the Bill amends this provision to allow the Minister in Charge of the New Zealand Security Intelligence Service (the “Minister”) (acting jointly with the Commissioner of Security Warrants (the “Commissioner”), in the case of domestic intelligence warrants) to issue intelligence warrants that authorise electronic tracking.

• The powers of officers giving effect to intelligence warrants, which are set out in s 4E of the Act, are extended to include steps required to be taken to gain entry. These powers are also expanded to cover places where facilities identified in a warrant are likely to be or to which entry is necessary to access facilities (cl 8, new s 4E(1)(d)).

• The Bill also amends the Act to make facilities (for example, mobile phone numbers

and Internet Protocol addresses) subject to intelligence warrants (cl 7(2), new s

4B(1)(d)); to enable the person authorised by the warrant to seek the assistance of other persons to give effect to the warrant without having to request an amendment to the warrant (cl 8, new s 4D(3)); and to replace the provisions relating to the issuance of warrants to remove devices installed under expired intelligence warrants (cl 9, new s 4I).

• In the advice provided on the Counter-Terrorism Bill in 2002, the former Attorney- General was advised that “the placing of a tracking device on any thing or vehicle constitutes an intrusion on reasonable expectations of privacy that a citizen would have in being able to go about his or her business without electronic observation being made of those movements through the installation and monitoring of tracking device.” We agree with this statement and consider that the changes being proposed to the intelligence warrant framework, particularly those relating to the use of electronic tracking devices, engage s 21 of the Bill of Rights Act.

• However, we do not think that the proposed changes to the intelligence warrant

framework will lead to it being inconsistent with the Bill of Rights Act. The proposed changes recognise the need to adequately provide for national security by enabling the use of operational techniques against sophisticated security subjects. The changes reflect recent technological changes in the storage and communication of information. We consider that the proposed changes are a necessary and

reasonable extension of the intelligence warrant framework in an age where the use of mobile phones and cyber-identities are prevalent.

• We note that the intelligence warrant framework, as amended by the Bill, will still be subject to the safeguards set out in the Act and attract the direct attention of the formal oversight authorities. In particular, the Act requires that the exercise of any power of entry be only on the authority of a warrant issued on the basis of sworn evidence (s 4A(1)), and the application of an objective standard including reasonable and probable grounds (s 4A(3)). The Minister is not obliged to issue the warrant and, in the case of a domestic intelligence warrant, may impose any terms or conditions advisable in the public interest (s 4B(2)). As stated above, a domestic intelligence warrant can only be issued with the agreement of the Commissioner, who needs to be a retired Judge of the High Court (s 5A(3)).

• Although the Bill expands the types of places covered by an intelligence warrant,

unless the place being entered is specified in the warrant or is owned or occupied by a person identified in the warrant the authorised person is under a duty to minimise

the impact of the warrant on third parties (s 4F). This includes advising the Minister and, in the case of a domestic intelligence warrant, the Commissioner (s 4F(1)), who may direct the authorised person not to proceed with, or to discontinue, the interception or seizure of communications or documents (s 4F(5)).

• The proposed changes to the intelligence warrant framework maintain an appropriate balance between security intelligence needs and reasonable expectations of privacy. The Bill, however, preserves the status quo in that warrants are to be issued by the Minister rather than a judicial officer.
• Ministerial rather than judicial oversight reflects the recommendations of Sir Guy Powles report on the Security Intelligence Service, (1976) AJHR A.4A that the security of the realm was properly the responsibility of the Executive. This view was

endorsed by Parliament at that time, and was reconfirmed when substantial amendments were made to the Act in 1999. We have found no indication that this view has changed.

• We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group.
  

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the New Zealand Security Intelligence Services Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.