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New Zealand: Review of Legislative Framework and Oversight of Security and Intelligence Agencies Completed

(Mar. 14, 2016) On March 9, 2016, the report of the Independent Review of Intelligence and Security was presented to New Zealand’s Parliament.  (Press Release, John Key, PM Welcomes Security and Intelligence Review (Mar. 9, 2016), BEEHIVE.GOVT.NZ; Michael Cullen & Patsy Reddy, Intelligence and Security in a Free Society: Report of the First Independent Review of Intelligence and Security in New Zealand (Feb. 29, 2016), New Zealand Parliament website.)

The review relates to New Zealand’s two security and intelligence agencies: the Government Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS).  While there have been previous reviews of the agencies, this was the first regular review under the Intelligence and Security Committee Act 1996, which was amended in 2013 to require that independent reviews be conducted of the “agencies, the legislation governing them, and their oversight legislation” every five to seven years. (Intelligence and Security Committee Act 1996, s 21, New Zealand Legislation website.)  The laws governing these agencies are the Government Communications Security Bureau Act 2003 and the New Zealand Security Intelligence Service Act 1969 (both on the New Zealand Legislation website).

Terms of Reference

The review commenced in June 2015 and was conducted by a former deputy prime minister, Michael Cullen, and a senior lawyer, Patsy Reddy.  (Press Release, Amy Adams, Intelligence and Security Review to Commence in June (May 13, 2015), BEEHIVE.GOVT.NZ.)  The terms of reference state that the purpose of the review was to determine

1. whether the legislative frameworks of the intelligence and security agencies (GCSB and NZSIS) are well placed to protect New Zealand’s current and future national security, while protecting individual rights;

2. whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure the GCSB and NZSIS act lawfully and maintain public confidence.  (Intelligence and Security Agencies Review – Terms of Reference, Ministry of Justice website (last visited Mar. 9, 2016).)

The reviewers were asked to have particular regard to whether the current legislative provisions related to foreign fighters, which expire in March 2017, should be extended or modified and whether the definition of “private communication” in the GCSB legislation is satisfactory.  (Id.)  Amendments related to foreign fighters were made to three different statutes as a result of the passage of the Countering Terrorist Fighters Legislation Bill in December 2014.  (Countering Terrorist Fighters Legislation Bill, New Zealand Legislation website (last visited Mar. 9, 2016); Countering Terrorist Fighters Legislation Bill, New Zealand Parliament website (last visited Mar. 9, 2016).)

Legislative Framework

The review report identifies a number of issues, including deficiencies in the current legislative framework governing the agencies.  It states that the legislation “is not comprehensive, is inconsistent between the two agencies, can be difficult to interpret and has not kept pace with the changing technological environment.” (Cullen & Reddy, supra, at 2.)  It also notes that the activities of the agencies are, by their nature, intrusive, and therefore that “it is important that all of their activities are externally authorised and open to oversight to ensure they are reasonable, necessary and proportionate.”  (Id. at 3.)

The report includes a number of recommendations, including that the objectives, functions, and powers of the agencies, and arrangements for their oversight be consolidated into a single statute in order to “provide greater clarity about what the Agencies can and cannot do, and what the checks and balances on their activities are.”  (Id. at 5.)  Further recommendations were made concerning what the common objectives and functions of the agencies should include.  (Id. at 6.)

Powers and Oversight

In terms of powers, the report recommends that the agencies “should in general only be able to obtain a warrant to target New Zealand citizens, permanent residents and organisations for the purpose of protecting national security.”  (Id. at 7.)  Furthermore, it recommends that the “current restriction on the GCSB taking any action for the purpose of intercepting New Zealanders’ private communications when performing its intelligence function” should be removed.  (Id.)  Instead, it proposes strengthening the authorization framework for the agencies to undertake any activity for the purpose of targeting a New Zealander, including a requirement that a warrant be approved by both the Attorney-General and a judicial commissioner.  (Id. It further recommends a new three-tiered authorization framework, “with higher levels of scrutiny for activity that is more intrusive or that targets New Zealanders.”  (Id.)

As part of the authorization framework, the report recommends that the legislation specifically address what information, including information held by other government agencies,  can be accessed and used by the two agencies.  (Id. at 12.)  

In terms of arrangements with foreign partners, the report recommends that there be standard terms on which the agencies can cooperate and share information with foreign jurisdictions and international organizations.  It also recommends that the new authorization framework include an appropriate level of authorization to access intelligence held by such partners in order to “ensure the legislation does not provide scope for the Agencies to use foreign partners’ capabilities to collect information they could not lawfully obtain themselves.”  (Id. at 11.)

The report also recommends that the roles of the Inspector-General of Intelligence and Security and the parliamentary Intelligence and Security Committee be enhanced.  (Id. at 10.)

Foreign Fighters

With respect to the foreign fighters legislation, the report recommends that the provisions related to the  government’s ability to cancel travel documents and NZSIS’s new visual surveillance powers should continue to apply, subject to additional safeguards and authorization procedures.  (Id. at 13.)