Amendments to Government Communications Security Bureau Act 2003
Clause 3 provides that this Part amends the Government Communications Security Bureau Act 2003.
Clause 4 amends section 3, which specifies the purpose of the Act. The amendments substitute new paragraphs (c) to (e). They have been recast to be consistent with changes in terminology being made.
Clause 5 amends section 4, which defines terms used in the Act. The amendments repeal certain definitions, amend other definitions, and insert new definitions.
The new definition of incidentally obtained intelligence is important in relation to new section 14 inserted by clause 12 and to new section 25 inserted by clause 24.
The new definition of information infrastructure is inserted to take the place of the repealed definition of computer system. The new definition includes any medium through or in which communications are carried or stored and includes the communications themselves.
Clause 6 replaces sections 7 and 8 with new sections 7 to 8D.
New section 7 states the objective of the Government Communications Security Bureau (the Bureau).
New section 8 provides that the functions of the Bureau set out in new sections 8A to 8C are not to be taken as specifying any order of importance or priority. It also clarifies that the performance of the Bureau's functions, and the relative importance and priority of the functions, if any, are to be determined from time to time by the Director, subject to the control of the Minister.
New section 8A sets out the function of the Bureau in relation to information assurance and cybersecurity.
New section 8B sets out the function of the Bureau in relation to gathering and analysing intelligence about the capabilities, intentions, and activities of foreign persons and foreign organisations, and in relation to gathering and analysing intelligence about information infrastructures.
New section 8C sets out the function of the Bureau in relation to co-operation with certain other entities to facilitate the performance of their functions. New subsection (2) provides limits on the extent of the co-operation provided, but clarifies that the co-operation may be provided even though the advice and assistance provided might involve the exercise of powers by, or the sharing of the capabilities of, the Bureau that the Bureau is not, or could not be, authorised to exercise or share in the performance of its other functions.
New section 8D gives the Director all the powers that are necessary or desirable for the purpose of performing the functions of the Bureau, but this is subject to the Act, any other enactment, and the general law.
Clause 7 replaces section 9 with new sections 9 to 9D dealing with the appointment of the Director, the appointment process, remuneration and conditions of appointment, removal from office, and review of the Director's performance.
Clause 8 amends section 11, which makes it an offence for current or past employees of the Bureau to unlawfully disclose information gained in connection with the Bureau. The amendments increase the maximum penalties from 2 years' to 3 years' imprisonment and from a $2,000 to a $5,000 fine.
Clause 9 amends section 12, which provides for the Bureau's annual report. The amendments are drafting amendments.
Clause 10 replaces the Part 3 heading to update terminology and reflect that the Part deals with both intercepting communications and accessing information infrastructures.
Clause 11 replaces section 13, which sets out the purpose of Part 3. The purpose is recast to be consistent with the recasting of the Bureau's functions and with amendments made to other provisions in Part 3.
Clause 12 replaces section 14, which provides that interceptions are not to target New Zealand citizens or permanent residents of New Zealand. The new section 14 is expressly linked to the Bureau's intelligence-gathering function in new section 8B and provides that any incidentally obtained intelligence is not obtained in breach of new section 8B, but must not be retained or disclosed except in accordance with section 23 and new section 25.
Clause 13 amends section 15, which prohibits, unless authorised, the connecting or installing of interception devices. The amendments are technical to reflect the change in terminology from computer systems to information infrastructures.
Clause 14 inserts new sections 15A and 15B.
New section 15A provides for the Director, for the purpose of performing the Bureau's functions under new section 8A or 8B, to apply to the Minister for an interception warrant to intercept communications or an access authorisation to access information infrastructures. The new section sets out the matters that the Minister must be satisfied about before issuing a warrant or an authorisation.
New section 15B requires the Commissioner of Security Warrants (appointed under the New Zealand Security Intelligence Service Act 1969) to be involved if anything that may be done under a warrant or an authorisation issued under new section 15A is for the purpose of intercepting the private communications of a New Zealand citizen or permanent resident of New Zealand under new section 8A or new section 8B to the extent that intercepting the person's private communications under that section is not precluded by new section 14.
Clause 15 amends section 16, which permits certain interceptions without an interception warrant or an access authorisation.
specify that the section applies to interceptions for the purposes of the Bureau's functions in new sections 8A and 8B:
specify that it does not authorise the interception of private communications of New Zealand citizens or permanent residents of New Zealand.
Clause 16 repeals section 17 and the cross-heading above section 17. Section 17 has been assimilated into new section 15A inserted by clause 14.
Clause 17 amends section 18, which provides for certain matters about interception warrants. The amendments widen the application of the section to include access authorisations.
Clause 18 replaces section 19 with new sections 19 and 19A. New section 19 requires the Director to keep a register of interception warrants and access authorisations that have been issued. New section 19A provides for the urgent issue of interception warrants or access authorisations by the Attorney-General, the Minister of Defence, or the Minister of Foreign Affairs if the Minister is unavailable and it is necessary to issue them before the Minister is available.
Clause 19 makes a drafting amendment to section 20.
Clause 20 replaces section 21 with a new section that confers immunity from civil and criminal liability for certain things done under the Act if done in good faith and in a reasonable manner.
Clauses 21 to 23 make drafting amendments to sections 22, 23, and 24 respectively.
Clause 24 replaces section 25. The new section specifies when and to whom incidentally obtained intelligence about New Zealand citizens or permanent New Zealand residents may be retained and communicated. The ground in the current section 25 of preventing or detecting serious crime in New Zealand or any other country is retained and the following 2 new grounds are added:
preventing or responding to threats to human life in New Zealand or any other country:
identifying, preventing, or responding to threats or potential threats to the national security of New Zealand or any other country.
Clause 25 inserts new sections 25A and 25B dealing with the protection and disclosure of personal information. New section 25A requires the Director, in consultation with the Inspector-General of Intelligence and Security and the Privacy Commissioner, to formulate a policy on the protection and disclosure of personal information that complies with the principles set out in new section 25B. New section 25B sets out the principles about collecting, using, storing, and retaining personal information.
Clause 26 makes consequential amendments to other Acts as set out in the Schedule.
Amendments to Inspector-General of Intelligence and Security Act 1996
Clause 27 provides that this Part amends the Inspector-General of Intelligence and Security Act 1996.
Clause 28 amends section 2(1), which contains definitions of terms, and inserts a definition of Deputy Inspector-General.
Clause 29 replaces section 5 with new section 5, which provides for the appointment of an Inspector-General of Intelligence and Security and a Deputy Inspector-General of Intelligence and Security. The Deputy Inspector-General has all the powers and functions of the Inspector-General, subject to the control and direction of the Inspector-General. The Deputy Inspector-General has all the powers and functions of the Inspector-General if there is a vacancy in the office of the Inspector-General or if the Inspector-General is absent from duty for any reason.
Clause 30 amends section 6, which provides for the Inspector-General's term of office. The amendments—
add a reference to the Deputy Inspector-General:
provide a maximum term of appointment of 3 years for each:
provide that each can be reappointed, but in the case of the Inspector-General only once.
Clause 31 amends section 11, which specifies the functions of the Inspector-General. The amendments replace subsection (1)(c), (d), and (da) with new paragraphs. Paragraph (c) is replaced with 2 new paragraphs. The effect of this is to permit the Inspector-General to inquire into the propriety of particular activities of an intelligence and security agency without needing the agreement of the Minister.
Paragraphs (d) and (da) are replaced with 2 new paragraphs. New paragraph (d) requires the Inspector-General to review, at intervals of not more than 12 months,—
the effectiveness and appropriateness of procedures adopted by each intelligence and security agency to ensure compliance with its governing legislation in relation to the issue and execution of warrants and authorisations:
the effectiveness and appropriateness of compliance systems concerning operational activity, including supporting policies and practices of each intelligence and security agency relating to certain matters, including risk management and legal compliance generally.
New paragraph (da) requires the Inspector-General to conduct unscheduled audits of the procedures and compliance systems described in new paragraph (d).
This clause also repeals section 11(2). That subsection placed limitations on the ability of the Inspector-General to do anything of his or her own motion in relation to a complaint about any activity of an intelligence and security agency.
Clause 32 amends section 12, which authorises the Inspector-General to consult certain public office holders and disclose information necessary for that purpose.
The effect of the amendments is to add a reference to the Independent Police Conduct Authority as one of the public offices that may be consulted.
Clause 33 amends section 15 consequential on the amendments to section 12.
Clause 34 amends section 25, which specifies what the Inspector-General must do on completing an inquiry. The amendments—
require the Minister to provide his or her response to the report to the Inspector-General and the chief executive of the intelligence and security agency concerned:
permit the Minister to provide his or her response to the Intelligence and Security Committee.
These amendments do not apply to the extent that a report relates to employment matters or security clearance issues.
Clause 35 inserts new section 25A, which requires the Director-General, as soon as practicable after forwarding a report as required under section 25(1), to make a copy of the report publicly available on an Internet site maintained by the Inspector-General. The new section specifies matters that must not be disclosed in the report made available under this section.
Clause 36 amends section 27, which provides for the Inspector-General's annual report. The amendments—
require the Inspector-General to certify whether each intelligence and security agency's compliance systems are sound:
require the Inspector-General, as soon as practicable after his or her annual report is presented to Parliament, to make a copy of his or her report (as presented to Parliament) publicly available on an Internet site maintained by the Inspector-General.