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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:
• enhance the responsiveness of the Service by streamlining the requirements for the
issue of warrants
The Bill also renames interception warrants as intelligence warrants, and a number of amendments are made as a consequence.
UNREASONABLE SEARCH AND SEIZURE
• 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 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).
• 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.
• 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)).
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.
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.
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URL: http://www.nzlii.org/nz/other/NZBORARp/2010/74.html