Amicus Curiae: The NZ Intelligence and Security Bill – Who Watches The Watchmen?

By Hannah Yang

The New Zealand Intelligence and Security Bill (the Bill) recently passed its first reading in Parliament earlier this month, and is the Government’s response to the Report of the First Independent Review of Intelligence and Security in New Zealand (the Report). This report, the first of its kind, was published in February this year in accordance with 2013 amendments to the Intelligence and Security Committee Act 1996 requiring periodic reviews of intelligence and security agencies and their governing legislation to be made every 5–7 years.

The Report was given by Sir Michael Cullen and Dame Patsy Reddy, and it concerned the Government Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS). It identified four key issues, namely—

1. Lack of clarity in legislation, resulting in uncertainty on the part of the two Agencies as to what they may and may not do;
2. Inconsistencies between the GCSB Act 2003 and the NZSIS Act 1969 which prevent the Agencies working together;
3. Absence of any requirement for judicial or ministerial authorisation of intrusive activities to ensure they are reasonable and appropriate; and
4. Lack of assessment that ensures the intelligence collected aligns with and is relevant to government priorities and decision-making needs.

The Report then gave several recommendations, including—

• Merging legislation governing the Agencies into a single Act to allow clarity in the law;
• Integrating the NZSIS into the public sector;
• Limiting warrants that target New Zealand citizens and residents to the purpose of protecting national security only, and not economic or international well-being;
• Removing restrictions on the GCSB intercepting New Zealanders’ private communications, and instead requiring that a warrant be approved by the Attorney-General and a judicial commissioner;
• Requiring authorisation for all of the Agencies’ intelligence activities;

The Bill in its current form takes most of the recommendations on board. It replaces 4 separate pieces of legislation currently governing the Agencies (NZSIS Act 1969; Intelligence and Security Committee Act 1996; Inspector-General of Intelligence and Security Act 1996; GCSB Act 2003), integrates the NZSIS into a state service, and lays out 3 principal objectives of the agencies. These objectives are: to contribute to protecting national security, maintaining international relations, and maintaining economic well-being.

Balancing provisions have also been put in place. For example, agencies must now act in accordance with New Zealand law, including its human rights obligations. Activities are to be limited to those relevant to the Agencies’ proper function, and those activities must be politically neutral. The Leader of the Opposition must also be regularly informed of matters relating to the Agencies’ functions.

With respect to “spying,” a new authorisation process is introduced, whereby warrants must be obtained for Agencies to carry out any activity that would otherwise be unlawful. These activities include: conducting surveillance, intercepting private communications, searching, and seizing.

Warrants are divided into two types. Type 1 warrants apply to New Zealand citizens and permanent residents, and may be issued only if the intended illegal activity contributes to protecting national security, if it is proportionate to its purpose, and if the purpose cannot be achieved by any less intrusive means. Maintaining international relations and economic well-being will not be reasons to target citizens and residents unless the target person(s) is suspected of acting for or being employed by foreign entities. On the other hand, Type 2 warrants apply to all non-citizens and non-residents, and may be issued if any of the three objectives listed above are satisfied.

The Bill also creates new offences, where it will be illegal to communicate, retain, copy, or fail to return classified information without proper authority. The offence attracts a maximum penalty of five years’ imprisonment.

In addition to the National Party, the Bill has garnered support on its first reading from the Labour Party, New Zealand First, the Māori Party, and the ACT Party. The Green Party and United Future voted against the Bill.

Labour Leader Andrew little has said that the Bill is a “good start,” but issues remain regarding the broad definition of “national security”, and precisely what constitutes a threat to the safety of New Zealanders and to a Government operation. Large-scale protests, for example, might become a threat to the operations of a Governmental department, but such behaviour should not be thought to justify what would otherwise be illegal surveillance. Mr Little also voiced concerns over the issuing of warrants under urgency, and whether the Attorney-General is the right person to authorise warrants, given the role’s involvement in Crown prosecutions.

Green Party MP, Dr Kennedy Graham, said that while the purpose of the Bill is to “protect New Zealand as a free, open, and democratic society,” that pursuit is inherently incompatible with the sanctioning of intrusive actions. The Green Party is not convinced there is sufficient grounds to justify a “centralisation and expansion of intrusive State powers,” given the “spate of inquiries” showing a “loose regard for law” on the part of the Agencies.

Naturally, the tension between individual rights to privacy and the need for State intrusion will inevitably arise on the issue of security and surveillance. The question seems to lie in what balance ought to be struck between the two. This is a complex question, and it is hoped that the select committee process for this Bill will yield some more definite answers.

Public submissions for this Bill have not yet been called, however updates on Bills for which submissions are active may be found on the Parliament website.

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