med by $7 @hile ta Ru 0 (0 Office of the Minister for National Security and Intelligence Cabinet UNCLASSIFIED Redacted for public release FOREIGN TERRORIST FIGHTERS -- TARGETED REVIEW OF CAPABILITY, AND LEGISLATION PACITY Proposal 1. The purpose of this paper is to seek Cabinet approval to carry ?r capability, capacity and legislation to ensure that they are adequat evolving domestic threat posed by foreign terrorist fighters ed review respo other violent to the Executive Summary 2. The threat posed by foreign terrorist fighters (F continuing to evolve rapidly. New Zealand's do but it is being monitored very closely and is i e. 3. Internationally the United Nations Sec Closer to home, the threat level in A been taken against suspect terr 'sts. legislation and resourcing to respon 4. The most immediate and a State of Iraq and a . Iv with ISIL are responsible for Fag widespread use ofi . and of violence. Redacted These air 0 tr rigin radical'ised and with military training. fighters threaten re il has? -: Redacted 5. lSlL?s abi' slims, motivate and enable the conversion of individ ais ma lise 5- -r ent ta 3, as its growth, ambition, resources and methods, . t? not only tability of the Middle East but also to New Zealand. . Zealand to FTFs is led by the NZSIS and the NZ Police. They are other agencies (for example and DIA). Redacted endments were made to the NZSIS Act in 2011 in preparation for overall the Act needs significant updating to respond to the changing rI @imnment, cyber environment, and changes in the public law environment. available to law enforcement agencies were substantially updated in 2012 enactment of the Search and Surveillance Act. A similar review and update is quired to security and intelligence powers. 8. The review of the NZSIS and (3088, their legislation and the oversight arrangements, which must commence before 30 June 2015 under the 2013 amendments to the Intelligence and Security Committee Act 1996 will allow all of the functions and powers of the agencies to be reviewed and proposals for updating to be developed as a single consistent package. However, the global security environment will not stand still while we carry out an orderly review and enact legislation in response. 9. The outdated NZSIS Act is giving rise to a number of difficulties. For example, the NZSIS Act does not authorise covert video surveillance for their investigations. By comparison, the NZ Police were provided this power for criminal investigations through the Search 3 Page 1 of6 UNCLASSIFIED UNCLASSIFIED Redacted for public release and Surveillance Act. Other examples include the limited ability to seize and intercept electronic information and being able to take urgent action to restrict travel to conflict zones. In addition, as the behaviour relating to FTFs is evolving our criminal law does not have offences that respond specifically to it. 10. Based on the changes in the security environment relating to FT Cabinet approve a targeted review to ensure that New Zealand' and legislation is adequate to meet that threat in the immediatwe. 11. Terms of reference for this review are set out in Annex 1. iew will led review report back to Cabinet with financial and le November 2014. Any legislative changes may be review, which is not intended. The report back ut it is now one that is terrorism in New Zealand Iative framework and Capacity nty has a threat level of HIGH (a terrorist terrorist attack is highly likely). As a aclty and capability coupled with extensive anti- ently announced further strengthening of their a 'a has increased funding. ws. legislativ orks, 14. at vel in New% is currently VERY LOW but it is being monitored closely rise of ISIL and its ability to radicalise moderate Muslims. as its gr bition, resources and methods has contributed to the increased tto and New Zealanders. lSlL?s capacity to influence militants beyond 'ts imm iat poses risks to regional and global security. It has the ability to run highl iv ampaigns using information technology and social media. 15. REQDE While this number is small compared to other countries, it is a number in the New Zealand context. 13. Australia and the threat levels for- . attack is like a consequenc a gre UK terroris have meted Australia successfully disrupted plans to carry out random acts of violence in support of ISIL in Australia. Redacted 17. The ISIL threat has direct implications in our own region and internationally given that a great many New Zealanders live, work and travel in these countries. Comment Current capacity and capability 18. The New Zealand response to FTFs is led by the NZSIS and the NZ Police. supported by a range of other agencies (for example NZ Customs at the border and the Department of Internal Affairs in relation to passport cancellations). DPMC also has a role in preparing domestic assessments to inform decision making. Page '2 of 6 UNCLASSIFIED UNCLASSIFIED Redacted for public release 19. The (3088 can assist the NZSIS with the execution of its warrants or other lawful powers under section 80 of the G088 Act. This provision was inserted into the G038 Act to allow the NZSIS (along with NZ Police and NZDF) to access the capabilities of the G088 and avoid the need to purchase multiple sets of expensive equipment 20. Redacted 21. Redacted Current statutory framework 22. Under the NZSIS Act the NZSIS can apply for intellige interception and seizure of communications, document can also be authorised. 23. Domestic warrants are approved by the Minister Security Warrants. Processes have been - considered urgently but the process still takes . 24. NZSIS can access information such as unde tio in the Privacy Act 1993. The NZSIS is working with I ommissioner and the Inspector-General of Security a '9 cs (I . velop privacy policies to maintain and improve access and 25. The NZSIS Act expressl that it i - fu ction of the NZSIS to enforce measures for securi . ccnse des not detain people or bring prosecutions. At th 0' ers are hnded over to the NZ Police for action under the relev in I Act or the Terrorism Suppression Act (although suc a difficul osec?ute). In the case of restricting the travel of suspected TFs flict zon a plioation can be made to the Minister of Internal Affairs un assports cel a person's passport. 26. The 8 es conduc we and seek information from people. The previous IGI ncerned that th elivery of Warnings by NZSIS officers on behalf of the over nt not get in certain behaviour could amount to enforcing measures for whi pr 'ed by the NZSIS Act. The current IGIS is reviewing this issue he Direc eantim . Review @i capacity and legislation 2? otentially gaps emerging in our framework to deal with FTFs and other violent tr 'sts given the changing security environment both internationally and ?g?mestically. Redacted curity has agreed that no such warnings will be delivered in the - Redacted 0 Redacted 28. The statutory powers and offences also have gaps which do not allow certain actions to be taken. Examples include: - Covert video surveillance the NZSIS does not have an explicit power to conduct video surveillance of people in private places. Law enforcement agencies can do this with the modernisation of their powers in the Search and Surveillance Act. Page 3 of 6 UNCLASSIFIED UNCLASSIFIED Redacted for public release 0 Ability to take urgent action applications for warrants to seize information and applications to cancel passports take a certain amount of time. With increasing sophistication of Suspected FTFs opportunities to seize information or disrupt travel can be lost. 0 Restricting and disrupting travel the. cancellation of pas rt ational security grounds is used to restrict travel of suspected FTF 9 nature of the threat means the grounds and duration of cancell releva applicable to some cases. - Certain behaviours not criminalised New land does nt I inalise behaviours such as traveling to or participa' ther jurisdictions like Australia have such often to such offences do provide a clear statement ceptable to New Zealand. It also opens up oppo - al assistance and respond to extradition requests. 29. A review of the NZSIS, GCSB, th I arrangements must be commenc er the Intelligence and Security Committee Act 1996. he (Hon Adams to avoid a perceived conflict of interest as 'ster for GCSB and NZSIS) is responsible for settling - consultation with the ln 0 '0 - and Secu . ediate attention in the short term. Consequently I . a targetek relating to the issues raised in this paper be carried out to inet by 10 November 2014 with financial and legislative oc on essential changes necessary to respond to the evolving . FTFs and other violent extremists as an interim measure. Draft 33. An urg gislation may be seen as getting ahead 'of the statutory review. To respond cern the review will consider whether any proposed new powers and offences be subject to a sunset clause so that they would expire if they are not carried forward following the 2015 statutory review. The report back on the review will address his and other matters relating to Parliamentary process. Publicity 34. I intend to announce the review after Cabinet and publicly release the terms of reference. Legislative Implications 35. There are no legislative implications arising from this paper. Consultation Page 4 of 6 UNCLASSIFIED UNCLASSIFIED Reda cted for public release 36.. This paper was prepared by DPMC with NZSIS in consultation with GCSB. The Ministry of Foreign Affairs and Trade, Ministry Of Justice, Department of Internal Affairs, New Zealand Police, New Zealand Customs, Immigration New Zealand, The Treasury and State Services Commission were informed of the contents of this paper. Financial Implications 37. There are no financial implications arising from this paper. Human Rights 38. There are no human rights issues arising from this paper. Human ri ts cons ations will be taken into account during the review. Regulatory Impact Analysis 39..A Regulatory Impact Statement is not require Recommendations 40. The Minister for National Security and recomm 33,: Cabinet: 1. Note that the domestic threa eat to - ders from foreign terrorist fighters and other violent extre evolvin especially in light of the rise of the Islamic State of Ir a nd Levant. 2. Note that the re i he GC their legislation and oversight arrangements elligen a "curity Committee Act 1996 that must commence 2015 rategy. Capability and Resource review involve a ment ions, powers and capability. - Re 9(2) mmediate gaps emerging in our capability, capacity 0 the threats posed by foreign terrorist fighters and other Hon John Key Prime Minister Minister for National Security and Intelligence 2014 Page 5 of 6 UNCLASSIFIED UNCLASSIFIED Redacted for public release ANNEX 1: Foreign Terrorist Fighters: Targeted Review Capability, Capacity and Legislation Terms of reference A review of the GCSB, NZSIS, their legislation and over-sight arran ust be commenced before 30 June 2015 under the Intelligence and Security a Act 1996 II In light The domestic threat from foreign terrorist fighters is evolving rapidl rise of the Islamic State of Iraq and Levant. Consequently, ther .- gaps emerging in New Zealand's capability, capacity and legislation to pond 's thre . The purpose of this review is to ensure that the capability, and le' a . unter the evolving domestic threat posed by foreign terrori and oth tremists are adequate to meet that threat. It is an interim pendin . etion of the 2015 statutory review. The review will consider,? thef are: Whether the capacity and capabilities and other 9 rnment agencies are sufficient to undertake effective and investigat xtremist foreign terrorist fighters, and other I The statutory powers available cies to returning foreign terrori rs an othe emists. disrupt the ability of suspected foreign st The statutory powe a to re rc a terrorist fighterst nflictz HQ we suspected and returning - Whether sp al offs hould be introduced to address the behaviour of suspecte an ing fore te ist fighters, and other-violent extremists. The re .e into experience of other similar jurisdictions, especially Aust United Kin and the recent United Nations Security Council resolution relatin ignte oristfighters. Mew wi Mia recommendations on how to strengthen New Zealand's my frame pacity and capability to meet the evolving threat posed by foreign orist fig 5 .-. other violent extremists. As these will be interim measures the review will co her any proposed powers and offences should be subject to a sunset cla 3 th will expire if not carried forward by the 2015 review. and development of any recommendations will be underpinned by: aspect for human rights, individual privacy and traditions of free speech in New Zealand. Compliance with any international obligations and agreements. The need to ensure public confidence in the work of the security and intelligence agencies. The review will be led by the Department of the Prime Minister and Cabinet supported by the NZSIS, GCSB and other relevant government agencies. Page 6 of 6 UNCLASSIFIED REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT CAB Min 14 32l2 Cablnet I Copy Minute of Decision This document contains information for the New Zealand Cabinet. it must be lrea?e d/ fl co and handled in accordance with any security classi?cation, or other endorsement. for can oniy released, including under the Official information Act 1982, by persons with th riate authop?ty. Foreign Terrorist Fighters: Targeted Review @ility, nd Legislation Portfolio: National Security and lnteliigence On 13 October 2014, Cabinet: I noted that the domestic threat and t1 from foreign terrorist ?ghters and "other violent extrei is a Ivmg ally in light of the. rise of the Islamic State of Iraq and Levant; a ernment Co 1; 11 ions Security Bureau, the New a Nice, ion and OVersight arrangements under the Intelligence and . . minitte (which must commence by 30 June 2015) and the Strat'? s. ?and 0 - ew being undertaken by the New Zealand Intelligence ity, both 'n a broad assessment of functions, powers and capabil' 3 no th acted 9(2% 4 11 there re potentia immediate gaps emerging in New Zealand?s capability, cap and 16 tic respond to the threats posed by foreign terrorist ?ghters and other ent ext' ts; agree i . 'geted review of capacity, capability and legislation be undertaken to ensure th 1 a equate to respond to the evolving domestic threat posed by foreign terrorist tors a other violent extremists; 6 ?gmed the terms of reference for the review set out in Annex 1 to the paper under (l 4) 531 and attached to this minute; 2 noted that the review 0' Zealan?d SecurityI - noted that the Minister forNational Security and Intelligence intends to report to Cabinet with financial and legislative recommendations from the review in November 2014. Redacted Secretary of the Cabinet Reference: CAB (14) 531 Distribution: (see over) 240721er 1 REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT Annex to CAB Min (14) 32I2 ANNEX 1: Foreign Terrorist Fighters: Targeted Review Capability, Capacity and Legislation Terms of reference A review of the GCSB, NZSIS, their legislation and oversight arrangements mus before 30 June 2015 under the Intelligence and Security Act 19 . from foreign terrorist fighters is evolving rapidly, especially in light oftl of Iraq and Levant. Consequently, there are potentially immediate gaps capability, capacity and legislation to respond to this threat. The purpose of this review is to ensure that the capability, ca a - egislati evolving domestic threat posed by foreign terrorist fighters adequate to meet that threat. It is an interim measure pen review. The review will consider, in particular, the - Whether the capacity and capabilities of and ot govei ent agencies are suf?cient to undertake effective and 1 1 vestigation ected and returning foreign terrorist ?ghters, and other 1e tremists monitor suspected and The statutory powers available to to inve . mists. returning foreign terroris tors an other 6 gdom, and the nt United Nations Security Council resolution relating to '1ghter I on how to "strengthen New Zealand?s statutory ork, ca aci pability to meet the evolving threat posed by foreign terrorist ?ghters ther viol nists. As these will be interim measures the review will consider whether a prep 0 and offences should be subject to a sunset clause so they will expire if not carried 1 ar the 2015 statutory review. and development of any recommendations will be underpinned by: Respect for human rights, individual privacy and traditions of free -_speech in New Zealand. Compliance with any international obligations and agreements. The need to ensure public con?dence in the work of the security and intelligence agencies. The review will be led by the Department of the Prime Minister and Cabinet support by the NZSIS, GCSB and other relevant government agencies. 240nm 3 UNCLASSIFIED Redacted for Release under the Official information Act Office of the Minister for National Security and Intelligence Cabinet FOREIGN TERRORIST FIGHTERS REPORT BACK ON TARGET CAPABILITY, CAPACITY AND LEGISLATION Proposal 1. The purpose of this paper is to report back on the tar review relatinglg?tyn terrorist fighters and other violent extremists, and approv g\s>la we and financial changes recommended by the revie Executive Summary iole extremists is threat el was recently psible but not likely). 2. The threat posed by foreign terrorist fi continuing to evolve rapidly. New Ze increased from VERY LOW to L0 Redacted 6(3) 3. Cabinet considered the threat 9 FTF tober 2014 and agreed a targeted review of capaci capabi and le tic undertaken to ensure they are adequate to respond 0 Iving dom and approved terms of reference for the review i the review was on interim measures that could be - ance of 15 statutory review of the security and intelligence or udge 1 4. The review red wh res could add to the safety and security of New financial recommendations the proposals were lement and have an impact ahead of decisions in as 53 I . 'th the% changes, the timeframe was longer as any legislation 8% so to the 2015 iew would not be enacted until the end of 2016 or early 20 he leg? ive anges were all assessed against the considerations Set out in Wterms efer . @nc?alregm ns . oncluded the most effective immediate investment would be at the nito and preventive and of the spectrum. The proposals for investment ently relate to the NZSIS. There may be impacts on the Police and there are activities that Customs could undertake at the border. However, those matters are best addressed through Budget 2015. The recommended investment in NZSIS over two years totals $6.738m operating 6. ($1.531 in 2014/15 and $5.20th in 2015MB) Redacted Page 1 of 20 UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act Legislative recommendations 7. 10. The review concluded there were targeted amendments that could ads to enhance powers to monitor and investigate, and to restrict and di The review did not recOmmend any changes to the criminal law i ti as the development of criminal offences requires more time to ensure ences consistent with our criminal law. The key proposals to enhance the powers to monitor and investi .are the NZSIS to carry out visual surveillance, and the NZSI safeguards to recognise human rights value strengthened oversight regime put in place modelled on similar powers in the Search The proposals to better enable disrup to the Passports Act 1992. The Min' ose a period of cancellation or ree years in certain circumstances 0 to suspend a travel document for up to 10. work an sati at travel is imminent and a proposal to cancel the assp ational rounds is contemplated. ant to the Customs and Excise Act 1996 to ensure Customs providing direct access to their data and w'osal is - urrent pr% ce holdings to NZSIS and Police can continue. There is a doubt about er the per its this type of access, and a small amendment will resolve that View. - res of direct access would substantially impede efficient and timely l' . ous criminal investigations. 5 and other violent extremists. More work is needed across a number of 0 Nerrelated areas. The 2015 review of the security and intelligence agencies together with the strategy, capability and capacity review is a key part of the additional work that is required. Other streams of work that will need to be considered include the development of processes to manage classified information in court proceedings and a review of the criminal law to determine whether new offences should be created to address the behaviour of FTFs and other violent extremists. Those issUes could be included in the 2015 review or conducted in parallel to that review with a view to introducing legislative amendments in a single bill in 2016. I will be addressing these matters with the new National Security Cabinet Committee. Page 2 of 20 UNCLASSIFIED WW UNCLASSIFIED Redacted for Release under the Official Information Act Background 13. The threat from FTFs and other violent extremism is changing and evo I pidly. Historically the threat level from terrorism in New Zealand has generally sad as VERY LOW, and our legislative framework and capacity 5 dealt adequately with our circumstances. 14. The threat level in New Zealand was recently increased from OW to LOW. The recent rise of the Islamic State in lraqhand the Levant (ISIL and its 15. the oversight Intelligence and Adams to avoid a GCSB and NZSIS) is nting the two reviewers perceived conflict of interest as i responsible for settling the 3 following consultation with the Int 16. The New Zealand In 17. These revie powers and and intelligence agencies. Redacted threat from FTFs and other violent extremists, ging in our response that may need immediate . ese issues on 13 October 2014 and agreed a targeted capacity, capa ity and legislation be undertaken to ensure they are Va? ate to re nd the evolving domestic threat and approved terms of reference the rev' (14) 32/2]. ment 9. ether the capacity and capabilities of the NZSIS and other government gencies are sufficient to undertake effective and efficient investigations of suspected and returning foreign terrorist fighters, and other violent extremists. The statutory powers available to agencies to investigate and monitor suspected . eferenc?e set out four matters for review and report back. They were: and returning foreign terrorist fighters and other violent extremists. The statutory powers available to restrict and disrupt the ability of suspected foreign terrorist fighters to travel to conflict zones. it Whether specific criminal offences should be introduced to address the behaviour of suspected and returning foreign terrorist fighters, and other violent extremists. Page 3 of 20 UNCLASSIFIED 20. 21. WW UNCLASSIFIED Redacted for Release under the Official Information Act The terms of reference also required the review and any recommendations to be underpinned by: - Respect for human rights, individual privacy and traditions of fre Zealand. - Compliance with any international obligations and agree 3. - The need to ensure public confidence in the work 0 the secu and in agencies. All of the proposals set out below addressed thes his The ustice, Crown Law Office, and Ministry of Foreign Affai _de war 0 in relation disc l0 ach proposal era oint, I note that is retained except where judicial review is already intelligence Warrant under the and all decisions will be subje th The findings and reco endatl review under each of those headings are set out ernment agencies eiligence relevant to security. This includes ed Fe and other violent extremists. Such activity a large number of staff and the use of technical . for securitmls consequently does not bring prosecutions. Investigating including terrorism offences is a a ringing osec tions for criminal offences, vc?on thWhere criminal offending is suspected the Police would usually hil fealand's response to FTFs and other violent extremists is led by the olice,_ they are supported by a range of other agencies. For example. the pa ent of Internal Affairs (DIA) in the case of cancelling or refusing passports, Xe at the border, and GCSB in relation to foreign intelligence. terms of reference asked the review to determine whether the capabilities of NZSIS and other government agencies were suf?cient in the short term to address the risk posed by FTFs and other violent extremists. Redacted The focus was therefore on what a targeted investment could do in the period between "now" and 1 July 2015 to have a real impact on the FTF threat Redacted That focus narrowed the number .of proposals for investment. The primary area of investment was identified as the NZSIS, which has the function of collecting intelligence on and monitoring FTFs and other violent extremists in other words at the preventive and of the spectrum. Additional investment in technology and staff (investigating officers and related 'support staff) would provide an increase in the Page 4 of 20 WW UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act number of people that could be investigated and monitored in the period before 30 June 2015. i 28. Redacted the classifie 29. Redacted r% Investment in NZSIS capability and capacity 3?1. The detail of the case for investment in the NZSIS is this paper. t?gence Powers to investigate and monitor 30. Redacted 32. Under the NZSIS Act the NZSIS can ap ra hat allow the interception and seizure of communicati 3, and In Electronic tracking can also be authorised. Domestic i?e%me arrant 'oint approved by the 0 (CSW). Foreign Minister in Charge and the Co of Se urit inisteri and for . In some circumstances ts require prior consultation . . . ions should be made to this range - uation. Particular attentiOn was given A) and the work of the Law Commission at Act was to modernise the law of search enforcement taking into account changes in ith human rights values. Similar considerations Igence powers. The powers available to intelligence are also considered. 33. any change 'esi otherjurisdi 34. the limit 0 the issue er of visual surveillance that can be undertaken by the NZSIS, dk inability to take urgent action without a warrant. Both of these seed in relation to law enforcement by the SSA, and I propose that 6 made to the NZSIS Act modelled on that Act. sue also came to light in relation to access to Customs' information by the nd Police. Access to this information is highly relevant to countering FTFs. The is discussed below and I propose that the Customs and Excise Act be amended to ensure the NZSIS and Police continue to have access to Customs? information. 3 . All of the proposals to enhance investigative and monitoring poWers will be subject to a sunset clause that expires on 31 December 2017. have recommended that date as it provides sufficient time for the 2015 review to be completed, a government response developed and legislation in response to be enacted. Visual surveillance The NZSIS cannot generally undertake visual surveiliance in a private setting 0r which would involve trespass onto priirate property. This means that the NZSIS cannot install Page 5 of 20 UNCLASSIFIED issue were identified in relation to the powers available to the NZSIS. The re?t? UNCLASSIFIED Redacted for Release under the Official Information Act a video camera in a private premise for the purpose of observing activities .of security concern, such as individuals constructing or training with weapons. 38. Visual surveillance powers were recommended by the Law Comm' ads available to law enforcement when their powers were modernised Act allows modern technology to be used to conduct investigations while regulating that activity consistent with hu considerations apply to intelligence investigations and the lack regime is a significant gap in NZSIS's capability to '0 duct effective investigations of suspected and returning FTFs. 39. I therefore recommend that the NZSIS Act be a . nable vi ei ance in a private setting or which would involve trespa rivate a? with and without a visual surveillance device) .- a und . ant. Any visual surveillance activity that can currently . out a warrant would continue outside of the Warrant regi other NZSIS warrants feguards and protections 40. I propose that all of the safegu should apply to warrants vis include: - Satisfying the in Charge l2@ hat the conditions for issuing a parties and destroy irrelevant records. neral oflntelligence and Security. 41. The apply to current NZSIS warrants would apply to rans . conduct% eiliance. They include: orising visual eillance against a specified person, place or facility; taff and other persons or organisations to undertake or assist in Enabling on e' ual surveillance activities; a I 'n the ancillary powers in 34E of the NZSIS Act to visual surveillance. This or example, enable the NZSIS to enter private premises to install cameras 0t er visual surveillance devices. pplying the existing immunities in s4A(6) of the NZSIS Act to vistial surveillance. 0 provide additional safeguards I propose that the exercise of this power be subject to MP of the NZSIS Act. This requires the prior approval of the Director and notification to the Minister and, where the warrant is- a domestic warrant. the CSW, who can direct the NZSIS not to proceed with or to discontinue the proposed activity. Surveillance in situations of emergency or urgency 43. The nature of intelligence investigations means that at times there are urgent situations that arise where immediate action may be necessary such as commencing interception of communications or installing a tracking device. For example, information may come to light that a person not previously identified as a risk is about to travel to a conflict zone. The NZSIS does have processes in place to expedite the preparation of warrant Page 6 of 20 UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act applications and place those before the Minister in Charge, the CSW and the Minister 44. This issue was considered by the Law Commission in relation to a regime for surveillance without a warrant in situations of em 0 included in the SSA. This was included even though Police have at t24/7 a 35 to issuing officers (such as a Judge or Justices of the Peer; he issue is more acutely felt by the NZSIS who have therefore propose that the NZSIS Act be amen - . ivities to . %e SSA which allows a front line officer to' decide g3 warrant, as an additional safeguard?g? at only eill nce without a person acting as the Director may i Eb Direc of Security or a 46. To provide appropriate safe ds propose the following requiremen at - Providl he auth a can only be exercised in circumstances where it is i to ob in the timeframe required and where the delay in a lo 0 ence; ng the curren atutory obligations to mitigate the impact of intelligence rrants urgent authorisations. This includes obligations to minimise impacts on third pa 'e destroy irrelevant records; equ Director (0r Acting Director) to notify the Minister in Charge, and . warrant would have been a domestic warrant, the CSW as soon as re Ie after exercising the authority; bling the Minister, and where appropriate'the Commissioner, to direct the ZSIS to discontinue activity under the authorisation and destroy any information I collected; - Requiring the Director to notify the Inspector-General of Intelligence and Security as soon as practicable after exercising the authority; and - Requiring the NZSIS annual report to include the number of times the authority was exercised during the reporting year. 47. If surveillance activity is authorised by the Director I propose that all of the provisions that apply to execution of warrants such as the ancillary powers, assistance by third parties, and immunities for those acting under warrant would apply. Access to Customs information Page 7 of 20 WW UNCLASSIFIED 48. 49. 50. 51. 52. Wham Powe 5 Rate or refuse to issue a passport or other travel documents if the Minister believes WW UNCLASSIFIED Redacted for Release under the Official Information Act Customs? Integrated Targeting and Operation Centre (ITOC) brings together agencies with an interest in the border to give a Inc.? view. of the risks pos border? crossing people and goods through the sharing of intelligence, joint tar the co?ordination of operational responses. ITOC has an established 0 function, with the security agencies fully engaged. Redacted At ITOC, suitany trained and authorised representatives of gove ent a particular the NZSIS and Police) are given access stoms'- syste' All authorised users have their access logg ccess ensure compliance with all privacy and other Ie ui ents. Thi treating Customs? data and intelligence holdin ole-of? the management of a wide range of risks nd. At a practical level, it allows an agen to piece to at relevant information rather than relying on each agenc identif re 'uesting information. nd identify investigative query process. Redacted had to rely on asking a ould substantially impact on the Direct access also enables an ake opportunities that would not a thoug If direct access was no Ie and Customs' employee to . queries on As a result of . a doubt as to wh @Act per it and the . to - currentpractice can continue I propose that the Custo xcise A ended to remove all doubt as to whether NZSIS and - . ms' passenger movement and trade data, and purposes including for the purposes of carrying out s, and preventing, detecting and investigating potential terrorism offences. .- oidings t-rrorism inve offending, includi so be subject to a sunset clause expiring on 31 December 2017. is? dment continues beyond that date will be addressed under the toms and Excise Act. revi of i and disrupt travel ssports Act 1992 currently provides that the Minister of Internal Affairs may reasonable grounds that a person is a danger to the security of New Zealand (see ss 4A. 8A, 20A, 25A, 27B and 27E of the Passports Act). A decision to cancel or refuse to issue a travel document prevents person from applying for a new travel document for a period of 12 months. The review considered whether there were any amendments to these and related provisions to better respond to the threats posed by FTFs. The review concluded that amendments should be made to address the following matters: Grounds for cancellation or refusal to issue travel documents Period of cancellation or refusal to issue travel documents Page 3 of 20 UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act ale to enhanc to that ex: 6 ion at encourage . iminal offences) to trict ovement of FTFs, tion 2178). a Temporary suspension of travel documents Travel document cancellation of a person overseas - Extending closed court processes in the Passports Act 0 Protection of classified information - Limiting Crown liability under the Passports Act 56. Each of the proposals is discussed below. All of the pr restrict and disrupt travel will be subject to a su te December2017. Cancellation and refusal to issue travel documents on nation 57. Terrorism is a global issue. There are a international cooperation and creation address this problem. Recently, the including their onward travel if out The Minister of Internal Affair grounds of national security if th person is a danger tot - .rity of New 58. 's us a travel document on - a terrorist act, sd truction, or ~apons . an uni ti desi aus?e serious economic damage to New Zealand. A ten ct des a more countries and consequently travel to other 59. co at isLa can be a basis to justify cancellation or refusal to ri Q21 ry out a span. fou that to gi better effect to the UNSC R2178 and to. acknoWIedge the fa at a mew travel would prevent the commission of terrorist acts in other ntries r0 5 of cancellation should be expanded to explicitly state that canoe atio sal is authorised if the Minister believes on reasonable grounds that a park ,ger to any other country in addition to New Zealand because the person @992 gage in or facilitate a terrorist act or the proliferation of weapons of mass tru t? n. . grounds or cancelation or refusal also include unlawful activity likely to cause so ious economic damage to New Zealand. That ground should continue to be confined to New Zealand as it does not relate to any international activities. I do not propose to specify that a travel document can be cancelled or refused on the ground that a person may engage in any unlawful activity that is likely to cause serious economic damage toany other country. Period of cancellation and refusal to issue 62. Currently, there are a small number of cases where the circumstances and intentions of an individual have not changed, and that when the period of cancellation ends a further application to refuse to issue a passport or travel document is made. This involves a fresh new application repeating all the information in the original case. Page Sci 20 UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Of?cial Information Act 63. In this small number of cases there is usually information available at the time of cancellation which shows that the person?s intentions and circumstances nlikely to change after 12 months. The circumstances could include the fact that tthe person is seeking to join as an FTP is assessed as continuing an 12 months, and the information available demonstrates that the per?so intent' - to join that conflict. 64. In response to this situation the review concluded that while a dard cellatio period of 12 menths would be sufficient for most case ere were 3 sm er of cases where a cancellation period of up to three yea i justified. has" ntly . MI Ister airs to hat, in the 65. of only 12 months may not ses see the 12 months as an retive manner, befdre re?applying ye rs would send a strong signal to the t1 12 months are likely to be rare but where they are i position on the person in question, and impacts on the ri to a safeguard, I propose that once noti?cation of Item; a perio than 12 months is given the person should have the 66. Application r. I propose th here should be periodic reviews once every 12 months by er that the person be invited to provide written submissions as to whether remain in place or not. cancellatio 6 . The pers . .s retain the ability to appeal or seek a judicial review of the Minister?s deci? the case for current cancellation and refusal to issue decisions. Tam a .y of passports and other travel documents 6 iew found that there are cases where information comes to light that a person ay be seeking to travel to engage in or facilitate a terrorist act. The information may indicate that travel is imminent and the NZSIS would seek to recommend the cancellation of the passport or other travel document. However, preparing the full package of information for the Minister?s consideration to enable a well informed decision to be made takes time to compile. In the meantime the person could leave New Zealand. 69. The review concluded that there Would be value in having a process to suspend a passport or travel document for a short period time to enable an urgent investigation and possible submission of a full brie?ng in support for cancellation to be made to the Minster of Internal Affairs. Page-10 of 20 WW UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act 70. The review carefully considered the period of time necessary to enable a briefing to be formulated, and found that no more than 10 working days would be require. . days have been specified as some of the information necessary to briefing includes information from commercial entities Redacted 6(a) entities can typically only occur on working days. 71. I therefore recommend that a person?s passport or travel docu ay suspends by the Minister for a period of no more than 10 working days, if the ister is tisfied on reasonable grounds that the person is likely to tra - minently an ing recommending cancellation on national security gr - being prep . recommendation for temporary suspension would r: in writing dedth otbea them off that laps to untry by other emen ould apply. 73. In some cases the preparation of reco en ncellation may reveal that the test in the Passports A a made . ase the Minister must be notified immediately and the pen spensio . Tra vet document cancellation rson overse .- 74. The UNSCresoluti a can be support document 0 and better i esolution propose that the Passports Act be amend to Iy state - a rson?s travel document can be cancelled even if re the ris of the person entering a country where there are well functioning Veer regimes where onward travel could be prevented. 5 hile this pact on the right to freedom of movement, in that the person would be re te om travelling to other countries, they'would be entitled to an Emergency ent (ETD) under section 23(3) of the Passports Act to return to New Ian ey would also be able to apply for an ETD for travel to other destinations assionate grounds. giving notice of cancellation . The Passports Act requires notice to be given to a person that their passport or travel document has been cancelled. In relation to FTFs, in some cases providing notice to a person may raise operational risks. For example, giving notice could reveal the existence of an intelligence investigation and potentially jeopardize the investigation, put the security and safety of the intelligence operators involved in the case at risk, and in some cases give rise to a threat to public safety. 77. Deferring the giving of notice would allow time for steps to be taken to mitigate any risks. 1 therefore propose that the Act be amended to allow the Minister to defer Page 11 of 2D UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act notification for up to 30 days if the Minister satisfied that providing notice immediately would put an investigation at risk or endanger the safety of any person. 78. at in A secondary issueI which was identified in a review of the Passpo i 0 despite some cases it is not possible to locate the person and provide the wt the best efforts of the Department of Internal Affairs. To address 0 situat that review recommended and now propose that the Act an to require Department to take all practicable steps to provide notice see Min 18/8 While not directly related to the FTP situation it will sup' - the efficient op ti the cancellation and refusal process. aI security 5 79. The Passports Act contains special provisio is- involved (for example cancellation of tional security). They provide a regime to manage an 'nfor'mation that may be required to be presented in ap latin to national security under the Passports Act. 80. In addition to the rights of a I a other legal challenges of the legal challenge to the Minister?s amended so that the Special provisions eviews and any other litigation brought to lve national security. (ss 29AA 2 chaHenge Protection 0 ole 8?1. formati eedings under the Passports Act und th ti??geo holdings may need to be withdrawn from judicial 'ee gs in som% tances. It is proposed that provisions are made in the 3 Act whereb lassified information that may be used in a 'close?d e. classifi 'nfor ation procedure? be permitted to be withdrawn at any time from Vceedl sWency which has provided the information. Subsequent decision - a reference these classified holdings in a similar way to the provisions cont. adv section 37 .of the Immigration Act 2009. This provision is particularly i 'h regard to the use of intelligence information sourced from foreign I s, where there is an expectatiOn that the information is only provided where a robust framev'vork and safeguards a'round its release. it; liability of the Crown The review noted the consequences of a travel document cancellation or suspension may cause the individual loss or damages due to the prevention of their travel, as well as other individuals or commercial entities associated with the travel. It is proposed that the C'rov'vn should be exempted from liability for loss and damages caused through the cancellation of travei except where those actions are grossly negligent or shown to be in bad faith. This would emulate the ousting provision in section 280E on the Customs and Excise Act 1996. Criminal offences Page 12 of 20 UNCLASSIFIED 83. 84. 85. 86. UNCLASSIFIED Redacted for Release under the Official Information Act The review was asked to consider whether any new criminal offences should be recommended to address the behaviour of FTFs and other violent remists. Legislation in Australia and the United Kingdom, including recent amend are currently before their parliaments were considered. On balance the review concluded that while there could be som in?d veiopi new criminal offences that more explicitly captured the FTP ph eno nd provide a graduated scale of offending and penalty levels, there was no ur and i ediate gap that needed to be addressed at this time. The gen criminal law a 'sm offences address the most serious forms of often developme offences that are consistent with our criminal law ta som A common theme that emerged during the cons%f crimi was the . The ence in some (D O. undercover ose officers in a civil cases including properly defend itself or presentation of classified information in cr' cases may come from sensitive sour 6 intelligence officers. Revealing those 3 the id court room could put their safety -- In applications for judicial review. wh . rown is explain its decisions because f0 ation 0 creating undue risk to security. 'sm su s'o elecommunications interception - to re is a and consistent statutory framework for c' 0' criminal litigation in New Zealand. This managing 0 means in formation is not used. The United Kingdom has develo a stat or I to address this issue. - oping to address this issue requires careful construction, .. 'ng onsultation%t judiciary. This issue could be included in the 2015 review or be ad essed in a separate but related piece of work as it goes the se 'ty intelligence agencies. I will be discussing this further with the al and the Minister for the GCSB and NZSIS. eral fi 'ng I ssue that did come to light, which applied beyond dealing with FTFs, is 8. @ability between the agencies that deal with these issues. To make best use of 89. all ent resources and ensure that the security and intelligence issues are dealt in the most effective and efficient way it makes good sense for agencies to share information and capabilities. However, the legislative frameworks that govern the work of the NZ Police. Customs, GCSB and NZDF are in different states of repair, With some more modern than others. The differences between the frameworks can create difficulties as it is not clear when agencies can cooperate or when a matter should transfer from one agency to the next. The development of clear and consistent statutory provisions that regulate those relationships would not only be an improvement in terms of ef?ciency but also in terms of providing greater safeguards and improve oversight and accountability. That is not an immediate gap that needs filling but something for more detailed policy work, and could be considered by the 2015 statutory review. Page 13 of 20 WW WW UNCLASSIFIED Redacted for Release under the Official Infermation Act 90. Further discussion about this issue is provided in the classified Annex to this paper. Publicity 91. I intend to publicly announce the decisions after Cabinet. Legislative Implications 92. 93. The proposals in this paper will require amendment to ass Act '19 Customs and EXCise Act 1996 and the New Zealand Security in once 8 ice Ac 1969. I intend to seek wide spread political support I a view to pa bill before the House rises on 10 December 2014. nature 0 Pi ues addressed by the Bill I believe referral to select mi is necess uently, folio Is for the subject to discussions with other parties, parliamentary stages of the bill. ?Wember 2014 Introduction of amending legislatioN\V First reading and related i Wit/sierra Wember 2014 select committee (under urgeiiQr) N96 November Select committee consideration 2014 5 December 2014 Select committee?epoitigi?bd 8 December 2014 All remaining 9 December 2014 Redacted k? - with atters is usually referred to the intelligence and is a statutory committee and the process for 9 it is set intelligence and Security Committee Act 1996. The nvolves nomin of members by the Prime Minister and the Leader of the confirmation of members by the House. it will not be possible to Wme to consider this Bill consequently i will provide advice on ittee the bill should be referred to when seeking approval to . oposals to enhance investigative and monitoring powers and disrupt travel t: asubject to a sunset clause that expires on 31 December 2017. i have ended that date as it provides sufficient time for the 2015 review to be mpleted, a government response developed and legislation in response to be enacted. Consultation 96. This paper was prepared by DPMC with NZSIS in consultation with GCSB, Ministry of Foreign Affairs and Trade, Ministry of Justice, Crown Law Office, Department of Internal Affairs, New Zealand Police, New Zealand Defence Force, New Zealand Gostoms, immigration New Zealand, and The Treasury. All of the parties represented in the House were provided a briefing on the terms of reference, the threat level in New Zealand and the reasons for the review. The briefings were provided by the Chief Executive of DPMC and the Director of Security. Page 14 onO WW UNCLASSIFIED Redacted for Release under the Official Information Act Treasury comment 98. The Treasury have provided a comment on the financial proposals the classified annex to the paper. In summary the Treasury a hat a short?term response to the threat is required, but they think th th a of the proposal in this Cabinet Paper is too large for the timeframe. New Zealand Police comment 99. Redacted 100. Police recognises that the NZSIS is seeking additiona to collect and analyse information, so it can be advise Ministers and other agencies accordingly. 101. Redacted 102. Redacted 103. Redacted 104. Redacted Financial Implications 105. The financial implicati .: ddressed in@fied annex to this paper. b?rer appear to be consistent with the New uman Rights Act 1993 and our international raise prima facie issues about the freedom of . r, the move to be se st unreasonable search and seizure and the right to ralj ce. A?nal i .i .. - whether the proposals will be consistent with the Bill of i possible 0 he legislation has been drafted. Officials from the Ministry 0 B. Human Rights 106. The propose and PM) will work together on this issue to improve consistency with the V0 Rights AW ysis I . Impact Statement will be attached to the paper seeking approval to bill. 1. Note that Cabinet agreed 'to a targeted review of capacity, capability and legislation to ensure that they are adequate to respond to the evolving domestic threat posed by foreign terrorist fighters and other violent extremists Min (14) 32/2]. Capacity and capability 2. Note that the recommendations relating to capacity and capability issues are set out in the classified annex to this paper. 3. Redacted Powers to investigate and monitor Page 15 of 20' WW UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act Visual surveillance 4. Agree to amend the NZSIS Act to enable visual surveillance in a priv es and involving trespass on to private property to be carried out under a rr and without a visual surveillance device). 5. Agree that all of the controls, safeguards. and oversight an applicable RD warrants in the NZSIS Act will apply to warrants for visual be. 6. Note that any visual surveillance activity that can ntly be ndert wfully without awarrant would continue outside the warra . 7. Agree to apply the ancillary powers in 34E of Act to to onduct visual surveillance. 8. Agree to apply the immunities in 54A SIS &rants for visual surveillance. o?i$sie cy Surveillance in situations of emerqen 9. Agree that the NZSIS Act he a allowt ir or of Security (or the Acting Director) to authorise su no activitie 'n visual surveillance) to be undertaken in situations of eme cy or c' 'ector) to be satisfied that the threshold for the NZSIS Act would be met; ent statutory obligations to mitigate the impact-of intelligence warrants apply to- urgent authorisations, including the obligations to minimise V0. I ts on third parties and destroy irrelevant records; . The Director (or Acting Director) must notify the Minister in Charge, and where the warrant would have been a domestic warrant, the Commissioner of Security Warrants as soon as practicable after exercising'the authority; 10.6. The Minister, and where appropriate the Commissioner, may direct the NZSIS to discontinue activity under the authorisation and destroy any information collected; 10.7. The Director must notify the Inspector-General of Intelligence and Security as soon as practicable after exercising the authority; and 10.8. The NZSIS annual report to include the number of times the authority was exercised during the reporting year. Page 18 of 20 UNCLASSIFIED UNCLASSIFIED Redacted for Release under the Official Information Act 11. Agree to apply the provisions that apply 'to the execution of warrants such as the ancillary powers, assistance by third parties, and immunities for those under warrant to those acting under a direction by the Director to act in t' of emergency or urgency. Access to Customs information 12. Agree to amend the Customs and Excise Act to clarify th ZS and Police may directly access Customs passenger movement and trade da and int ence holdings for the purposes of conducing counts rism investi preventing, detecting and investigating potential on? ing. Page 17 of 20 UNCLASSIFIED UNCLASSIFIED Redacted for Reiease under the Official Information Act Powers to disrupt and restrict travel Grounds for cancellation or refusal to issue a passport .or other travel documgg 13. Agree to amend the Passports Act to explicitly provide that cancell sal to issue a passport or other travel document can be made on the a. a persn is a danger to any other country (in addition to New Zeala se the per intends to engage in or facilitate a terrorist act or the prolife fw apons of ma destruction. Duration of cancellation or refusal to issue a org??bhtravel docume airs to Minister is set a cancellation or refusal to issue period 0 es year satisfied that, in the absence of a signifi in the cumstances, the person would continue to pose a New or z- other country such thatafurthertravel document a 15.Agree that once notification . a sue for more that 12 months is given the person 3% i to made ubmission to the Minster for Internal Affairs on the durati fc cellation . .. to issue. 16. Agree that there sho periodic revi Internal Affairs an whether the ca . refusal 3 Temporary suspe?l Vof?h'avel Agree a sports A amended to allow the Minister of Internal Affairs to a n?s trav 0 nt for a period no longer than 10 working days if is satisfi person is likely to travel imminently and a briefing ending can% national security grounds is being prepared. 9 that any applica for suspension in recommendation 1? must be made in 14. Agree that the PaSSports Act be amended to mister the preparation of the briefing recommending cancellation that . cellation cannot be made out, the Minister of Internal Affairs must be Myer: ti.? ediately and the suspension will lapse on that notification. T?gg?pu ent cancellation of a person overseas that the Passports Act be amended to clarify and explicitly state that a erson?s travel document may be cancelled when they are outside of New Zealand. Notice of cancellation 21. Agree that the PaSSports Act. be amended to allow the Minister of internal Affairs to defer the giving of notice of cancellation for not longer than 30 days if satis?ed that the giving of notice immediately would jeopardize an ongoing investigation, or put the security and safety of any person intelligence operatives) at risk. 22. Agree that the Passports Act be amended to provide for the notice requirement to be satisfied where the Department of Internal Affairs has taken all practicable steps to provide notice under the Act. Page 18 of 20 WUNCLASSIFIED WW UNCLASSIFIED Redacted for Release under the Official Information Act Protection of classified information in proceedings under the Passports Act 23. Agree to amend the Passports Act to extend the application of the speci for proceedings where national security is involved ZQAC) forjudicial review and any other litigation which involves a challen 0 under the Act involving matters of national security. 24. Agree that any classified information introduced in eviden er closed court proceedings may be withdrawn at anytime in the interes of natio al secur to maintain confidentially obligations to and/or the provided by other countries. .: slfication of 25. Note that once withdrawn the information sh ll elied not be referenced in any decision making. Limiting liability of Crown for cancellation and @on 26. Agree that the Crown should not Woes aused through the cancellation or refusal to issue a 3 other ave ent, except in cases of gross negligence or bad fai? Legislative implications 27. Agree that the legis 3? endments per be included in a Countering Foreign Fighters 8 Bill, to be enacted by 10 December 2014 if possibl 28. Agree tha gislati 9 in the bill will be subject to a sunset clause of her 20 CD 3 1-1- IS er for ourity and Intelligence to issue drafting instructions arl ary Co I ?ve effect to the above legislative decisions. 3 . the Minister ational Security and Intelligence, in consultation with the er In ge the NZSIS, Minister of Customs and the Minister of Internal Make a ap e, to make any decisions on additional matters that are necessa . - bove legislative proposals, and that are consistent with Cabinet's deci s. 31. rther advice on the Parliamentary stages of the bill will be provided when ro lfor introduction is sought. Rt Hon John Key Prime Minister Minister for National Security and Intelligence 2014 Page 19 of 20 UNCLASSIFIED UNCLASSIFIED REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT Cabinet Copy No: Minute of Decision 6) CAB Min (14) 35I5A (A This document contains information for the New Zealand Cabinet. it must be treategcuf m?yhce and handled in accordance with any security classification, or other endorsement. T22: ?lm can calm opn released, including under the Official Information Act l982, by persons with authority. Pow rs to Mums agreed the 1 1 5 Foreign Terrorist Fighters: Report Back 0 Capability, Capacity and Legislation 011 3 November 2014,, Cabinet: Background I noted that on 13 October 2014, and legislation to ensure that they or equat - - posed by foreign terroris is and other elnists Min (14) 32/2]; 0 capability issues are set out in CAB (14) 557, sport Back on Targeted Review of Capability, ex 1) Min (14) 35/513]; Capacity and capabilit 2 noted that pro 1' entitled Forc' Capaci - a . alien 3 di stig'a New Zealand Security Intelligence Service Act 1969 (the NZSIS Act) surveillance in a private place and involving trespass 011 to private propeity a1 out under a warrant (with and without a visual surveillance device); to that all of the controls, safeguards, and oversight mechanisms applicable to warrants in the NZSIS Act will apply to warrants for visual surveillance; noted that any visual surveillance activity that can currently be undertaken lawfully without a Warrant would continue outside the warrant regime; 7 agreed to apply the ancillary powers in section 4B of the NZSIS Act to warrants to conduct visual surveillance; 8 agreed to apply the immunities in section of the NZSIS Act to warrants for visual surveillance; UNCLASSIFIED 1.. UNCLASSIFIED REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT CAB Min (14) 35I5A Surveillance in situations of emergency and urgency 9 agreed that the NZSIS Act be amended to allow the Director of Security (or the Acting Director) to authorise surveillance activities (including visual surveillance) to be undertaken in situations of emergency or urgency without a warrant; 10 agreed that to provide appropriate safeguards and to ensure oversight th or of Security?s power to authorise surveillance in situations of emergenc or the following requirements will apply: 10.] the Director (01' the Acting Director) to be satis?ed that. the 'eshold ?issuin warrant under section 4A of the NZSIS Act woul I . 10.2 th no 10 .3 is impracticable to int ligence; 10.4 the current statutory obligat?o . - gate the in ?t 0 intelligence warrants would apply to urgent auth 1- . ligations to minimise impacts 10.5 the Director (or ,1 . Minister in Charge of the New Zealand Secu i~ . d, here the warrant would have been a eeurity Warrants as soon as practicable a?er exer 10.6 the@ NJ . - .Iirector 1mm the Inspector-General of Intelligence and Security as soon racticable after ercising the authority; 10 the report to include the number of times that the authority was ex - a the repelting year; agr i the provisions that apply to the execution of warrants such as the ancillary tance by third parties, and immunities for those acting under warrant to those opriate the Commissioner, may direct the NZSIS to authorisation and destroy any information collected; ler a direction by the Director of Security to act in a situation of emergency or to Customs information agreed to amend the Customs and Excise Act 1996 to clarify that the NZSIS. and the Police 3 $2 may directly access Customs passenger movement-and trade data, and intelligence holdings for the purposes of conducting counter?terronsrn investigations; UNCLASSIFIED 2 UNCLASSIFIED REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT CAB Min (14) Powers to disrupt and restrict travel Grounds for cancellation or refusal to issue a passport or other travel dowment 13 agreed to amend the Passports Act 1992 to explicitly provide that cancellatio refusal to issue a passport or other travel document can be made on the grounds that i A or is a danger to any other country (in addition to New Zealand) because the pe engage in, or facilitate, a terrorist act or the proliferation of weapons "1 . notion; Duration of cancellation or refusal to issue a passport or other travel do 14 agreed that the Passports Act 1992 be amended to allow th - inister Interna fairs set a cancellation or refusal to issue period of up to three I circ . other 1 that a satis?ed that, in the absence of a signi?cant change 11 person would continue to pose a danger to New Ze E12111 12 months. is star of Internal ?nther travel document would not be issued; 15 agreed that once noti?cation of cancellati given, the person has the right to make 16 agreed that there should be peri Whether the cancellation Qd to allow the Minister of Intemal Affairs to Temporary suspension of tr 17 agreed that th 3 ct 199 Suspend a per docu' a period no longer than ten Workingdays if the Minister . ans at the 1 to travel imminently and a brie?ng recomme 'ncellatio I . ual security grounds is being prepared; 18 a application suspension in accordance with the proposal in paragraph 17 or cane lati at be made out, the Minister of Internal Affairs must be noti?ed immedia - the suspension will lapse on that noti?cation; abo be urge in writing; that "n preparation of the brie?ng recommending cancellation that the test avel doc ent ncellation of a person overseas 20 that the Passports Act 1992 be amended to clarify and explicitly state that a person?s rave document may be Cancelled when they are Outside of New Zealand; @ice of cancellation 21 agreed that the Passports Act 1992 be amended to allow the Minister of Internal Affairs to defer the giving of notice of cancellation for not longer than 30 days if satis?ed that the giving of notice immediately would jeopardise an ongoing investigation, or put the security and Safety of any person (including intelligence operatives) at risk; 22 agreed that the Passports Act 1992 be amended to provide for the notice requirement to be satis?ed where the Department of Internal Affairs has taken all practicable steps to provide notice under the Act; UNCLASSIFIED 3 gedacted UNCLASSIFIED REDACTED FOR RELEASE UNDER THE OFFICIAL INFORMATION ACT CAB Min (14) 3515A Protection of classified information in proceedings under the Passports Act 1992 23 agreed to amend the Passports Act 1992 to extend the application of the Special provisions for proceedings where national security is involved (sections 29AA to 29AC) to appliCations for judicial review and any other litigation which involves a challenge to an ecisions under the Act involving matters of national security; 24 agreed that any classified-information introduced in evidence nude 10 proceedings may be withdrawn at any time in the interests of not a rrfi or to 1 1 confidentiality obligations to and/or the security classification "01111 on provrcle other countries; 25 noted that once withdrawn, the information shall not a - on and will renced in any decision making; Limiting liability of CroWn for cancellation and suspen 'on cau ed through the urnen xcept in cases of gross 26 cancellation or refusal to issue a pass negligence or bad faith; Legislative implications 27 agreed that the legrslatr osals agree 2 reludcd in a Countering Foreign Fighters and Other Vic" fernists Bill . to be enacted by 10 December 2014 if possible; 28 agreed that th slativ - i . a in the Bill be subject to a sunset clause of 1 April 201 8; 29 ster for t' ecurity and Intelligence to issue drafting instructions to ntary Corr% 6 to give effect to the above legislative preposals; 30 New Zealand Security Intelligence Service, the Minister of ster of Internal Affairs as appropriate, to make any decisions on hat are necessary for the above legislative proposals: and that are additio 1n . con Cabinet?s decisions; 31 further advice on the parliamentary stages ofthe Bill will be provided when 1 for introduction is sought"nister for National Security and Intelligence, in consultation with the Secretary of the Cabinet Reference: CAB (14) 55 6 Distribution: (see over) UNCLASSIFIED 4 UN ED RESIRIJSTED UNCLASSIFIED Redacted for Release under the Official Information COUNTERING FOREIGN TERRORIST FIGHTERS BILL APPR INTRODUCTION Proposal 0 Iseekapproval to introducethe Countering Foreigpg/Eer I Ighter I) into Office of the Minister of National Security and elligence Cabinet 0@ the House. Background 2. On 13 October 2014 Cabinet agreed to eview of ap capability, and legislation to ensure that they are ad spondt domestic threat .. re ists Min (14) posed by foreign terrorist fighters 32/2]. 3. On 3 November 2014 Cabl et agr a tive and capability proposals set out in the paper re ck on the view of capability, capaCity and 4 . legislation Mi and 35/53]. 4. Cabinet agris tive ch?o: . . ut ower$ the NZSIS to investigate and monitor suspected anng FT violent extremists, and tutory power table to restrict and disrupt the ability of suspected ?5 tot vel to conflict zones. We legi .. iMres are interim measures to deal with immediate gaps pending statuto - t- of the G088, NZSIS and related legislation under the Intelligence and 3% ommittee Act 1996, the Bill is subject to a sunset clause of 1 April 2018. Power inv ate and monitor Policy 6. ill amend the New Ze?aiand Security and intelligence Service Act 1969 to is the NZSIS to conduct: a. Visual surveillance in a private place and involving trespass onto private property under a warrant. i b. Surveillance authorised by the Director of Security in situations or emergency or urgency without a warrant for a period of up to 48- hours. 7. Both powers are modelled on changes made in the Search and Surveiilance Act 2012, and are subject to appropriate safeguards which are detailed in the Bill. 8. The safeguards and oversight that apply to other warrants will apply to warrants for visual surveillance. The safeguards include having to satisfy the Minister in Charge Page 1 of6 RESTRIJGZFED UNCLASSIFIED 10. 11. 12. to . @s Orts Act 1992 currently allows the Minister of Internal Affairs to cancel or 13 RESTRICTED UNCLASSIFIED Redacted for Release under the Official Information Act and Commissioner of Security Warrants (CSW) that the conditions for issuing warrants apply and oversight by the Inspector General of Intelligence and Security. To provide appropriate safeguards and oversight to authorisations in situ 'ons of emergency and urgency the following requirements apply: . The Director must be satisfied that the threshold for issuing a we be met. rs - The duration of the authorisation is limited to a period no cs 48 hou - The authorisation can only be issued in circumstances is impra .tical to obtain a warrant in the timeframe and where the?! is likely res I use of a intelligenceCSW the NZSIS to lec - The Director must notify the Minister in Char 'nform ati under the as soon as practicable after issuing the au - The Minister in Charge, and where ap discontinue the surveillance and des a authorisation. - The Director must notify the IG 0 authorisation. - The NZSIS annual report st I lude th imes authorisations were issued during the reporting and fauthorisations were followed by an application rrant. The powers are a As a result of work has been wheth rmits Customs to provide direct access to NZSIS an is access substantially improves the speed and effici i tigati em all doubt, oms and Excise Act is amended by the Bill to clarify that ess can be pr ed to the NZSIS and Police but only for counter terrorism es. Th' Bill is a focused and targeted measure to address the FTF nomenonWer issues about direct access to Customs information will have I bead a separate process. . nd disrupt travel 0 issue a passport or other travel document if the Minister believes on sonable grounds that a person is a danger to the security of New Zealand. The Bill makes amendments to the cancellation and refusal to issue process to improve its operation and take into account UNSC 2178 which urged nations to restrict the movement of FTFs, including their onward travel if outside their home country. Duration of cancellation or refusal to issue The Bill allows the Minister of Internal Affairs to set a cancellation period of up to three years rather than the standard '12 months where the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country. Page 2 of 6 RESTRICTED UNCLASSIFIED ?16oceedin 23. 24. RESIRIGIED UNCLASSIFIED Redacted for Release under the Official Information Act The safeguards include the person being able to make submissions to the Minister on the duration of the cancellation, and periodic reviews once every 12 months with the person invited to make written submissions as to whether the cancellation should remain in place. The person will also have the ability to appeal or seek a 'al review of the Minister?s decision to extend the duration of the cancellation. Temporary suspensions ay eeking to we the Ministert There are cases where information comes to light that a perso travel imminently to engage in or facilitate a terrorist act. The Il suspend a person?s travel document for no more than 10 orking of Internal Affairs is satisfied that a briefing recomme prepared and the person is likely to travel within th during the preparation of the briefing it become cancellation cannot be established the Minis suspension will lapse. Giving notice The Bill allows the Minister of Int the Minister is satisfied that pr risk or endanger the safety of a for up to 30 days if uid put an investigation at to locate In some cases it is not I despite the best eff 6% epartm the Bill amends to uire th provide notice i? curre??cial provisions that apply to appeals under the Act .-. . securit I ved. The Bill extends those provisions tojudicial in other lega%e ges underthe Passports Act to ensure a consistent regarle'ss of what form the legal challenge to the Minister's decision takes. information introduced into evidence under closed court - Ithdrawn at any time in the interests of national security or to maint .c entiality obligations of information provided by other countries. Ill . exempts the Crown from liability for loss and damages caused through llation of travel except where those actions are grossly negligent or shown to in ad faith. Clarifications In order to better respond to UNSC 2178 the Bill makes two amendments to clarify or make matters explicit. First, the Bill makes explicit that cancellation or refusal to issue a travel document can be on the grounds that a person is a danger to any other country, in addition to New Zealand, because the person intends to engage in or facilitate a terrorist act or the proliferation of weapons of mass destruction. Second, the Bill clarifies and makes explicit that a person's travel document may be cancelled when they are outside New Zealand. Page 3 of6 RESIRIGIED UNCLASSIFIED g? RESTRICTED UNCLASSIFIED Redacted for Release under the Official Information Act subject matter of the Bill makes it inherently contentious. In particular, the proposal to allow Warrantiess- surveillance for up to 48 hours authorised by the Director of Security will raise issues. A number of safeguards have been inserted in the Bill and proposal was modelled on a similar power for Police in the Search may require'further refinement during the select committee pro 25. The the Regulate 26. Compliance 27. The a. b. e. Privacy Act 1993. 28. The visu 9 er proc 30. a Surveillance Act. The Privacy Commissioner has commented on this may choose to make a submission during the select committee pm$ roposal A regulatory impact statement (RI S) was prepared by Minister and the Cabinet (DPMC). internal reviewed the RIS and considered that it partially ry impact analysis Department of he ity assuranc qu tty as I of Rights Act 1990; Bill complies with: the principles of the Treaty of the rights and freedoms co i a New ee'guid the Legislation Advisor- ent gu ines 0 statement has been prepared par); and andar@b'. ations. he introduction of warrantiess interception, search, are for counter?terrorism purposes as well as for ommissioner's? view is that the warrant process is the ty pur critical 3% for ensuring appropriate oversight of the use of nce powers in th security intelligence context. Commie side'rs that in cases where warrantiess powers are used, to 5Q intelligence is preserved, while maintaining a robust authorisation the disclosure stat and is attached relevant int ?c issione and Pdvac al ill l?I- ctor should immediately inform the Minister and CSW and secure. a warrant as con as is practicable to authorise the use of those powers, with the Minister CSW having the power to overturn an authorisation by the Director; and reporting of the use of warrantiess powers should be more frequent than annually i.e. or quarterly, and should include all instances where such powers are used' whether .or not a warrant is subsequently obtained. The Commissioner also has an interest in the amendment to the Customs and Excise Act. Any advice on this amendment will be provided during the select committee process. Page 4 of 6 RESTRICTED UNCLASSIFIED RESTRICTED UNCLASSIFIED Redacted for Release under the Official Information Act Consuttation 31. The New Zealand Security Intelligence Service, New Zealand Customs Service, the Department of Internal Affairs, New Zealand Police, the Ministry of Justice, the Privacy Commissioner Were consulted on the deveIOpment of the Bill. 32. I intend to consult other parties represented in the House on the Bill 0't introduction. Binding on the Crown am 33. The amendments in the Bill will bind the Crown because they Acts th ind th Crown. Creating new agencies 34. No new agencies will be created by the Bill. Allocation of decision-making powers maki ?retween the al assent is given. The Bill 35. The Bili does not involve the allocation executive, the courts or tribunals. Commencement of legislation 36. The Bill?s provisions will come int has a sunset clause of 2018. Parliamentary stages 37. I intend to introdu I and December 2014 if possible. The process will include a com - s. The Leader of the House will provide advice at Ca arding 'amentary stages and the select committee to which refe Recom da ns 38. ter of National Se urity and Intelligence recommends that Cabinet: note that <9 . that on 3 November 2014 Cabinet agreed to legislative and capability x49? posals set out in the paper reporting back on the targeted review of capability, capacity and legislation Min (14) and CAB Min (14) 3. note that the Bill amends the New Zealand Security Intelligence Service Act Wtober 2014 Cabinet agreed to a targeted review of capacity, egislation to ensure that they are adequate to respond to the omestic threat posed by foreign terrorist fighters (FTFs) and other remists Min (14) 32/2]. 1969, Passports Act 1992 and the Customs and Excise Act 1996 to respond to the threat posed by foreign terrorist fighters and other violent extremists; 4. note that the amendments in the Bill are subject to a sunset clause of 1 April 2018; 5. note that the Minister of National Security and Intelligence intends to consult other parties represented in the House prior to introduction of the Bill; Page 50f6 UNCLASSIFIED RESIRMED UNCLASSIFIED Redacted for Release under the Official Information Act 6. authorise the Minister of National Security and Intelligence in consultation with other Ministers as appropriate to make changes to the General Policy Statement and editorial changes to the Bill priorto introduction that are consistent with Cabinet?s decisions; 7. approve the introduction the Countering Foreign Terrorist Figh ject to the final approval of the government caucus; 8. note that advice on the parliamentary stages of the Bill be rated at Cabinet. Rt Hon John Key Prime Minister Minister of National Security and Intell' Page 6 of 6 RESIRLGIED UNCLASSIFIED Redacted for Release under the Official Information Act Cabinet CAB Min (14) 3619 Copy No: Minute of Decision This documentcontains information forthe NewZealand Cabinet. it mustbe treats aha/e and 1 ti ropr? handled in accordance with any security classi?cation, or other endorsement. Th can on! released, including under the Official information Act 1982, by persons with th authority. TV Countering Terrorist Fighters Legislation val . uction Portfolio: National Security and Intelligence On 17 November 2014, Cabinet: - i Policy considerations I noted that on 13 October 2014, Ca greed to review of capacity, capability, and legislation in relation do t1 posed by foreign terrorist ?ghters and other violent extre 2 noted that on 3 4 Cabi a - legislative and capability proposals in response to the apacity and legislation Min (14) and CAB Mi 1g11ters Legislation Bill (the Bill) amends the Service Act 1969, the Passports Act 1992 and the 3 noted th unterin Ne ecurity I i - - v. EXcise Act 1 respond to the threat posed by foreign terrorist ?ghters and nt ext ists; - in the Bill are subject to a sunset clause of 1 April 2018; to amendments to the NZSIS Act to allow the Director of Security (or the A ing Director) to authorise surveillance activities (including visual surveillance) to undertaken in situations of emergency or urgency without a warrant Min (14) .2 agreed that the provisions in the draft Bill to give effect to this proposal be amended to provide for Ministerial authorisation in situations of emergency or urgency; 5.3 authorised the Minister for National Security and Intelligence, in consultation with the Minister in Charge of the NZSIS, to make changes to the Bill to give effect to this amendment; WUNCLASSIFIED 1 Redacted for Release under the Official Information Act 6 6.1 noted that Cabinet also agreed to amend the Customs and Excise Act to clarify that the NZSIS and the Police may directly access Customs passenger movement and trade data, and intelligence holdings for the purposes of conducting counter?terrorism investigations Min (.14) 6.1 directed DPMC, in consultation with the NZSIS, the Police and i 4 Customs Service, to provide ftuther advice to the Minister for httelligence, the Minister in Charge of the NZSIS, the Mini Minister of Customs on the implications of the proposed provision of Customs information to the Police and th 6 .2 authorised the Minister for National Security a the Ministers referred to above, to make any cl issue; Introduction of Bill 7 noted that the Minister for National Sec 't telligenc&gs to consult other parties represented in the House prior to the 9 approved the int? 18749/7. work referre 10 noted ecurity and Intelligence intends to introduce the Bill for :210 I 4 if possible, including a short select committee process. et?ywi Reference: CAB (14) 574 2