General policy statement
The New Zealand Intelligence and Security Bill implements the Government response to the Report of the First Independent Review of Intelligence and Security in New Zealand: Intelligence and Security in a Free Society (G.24a) (the Review).
The Review is the first that has been undertaken pursuant to amendments to the Intelligence and Security Committee Act 1996 that were made in 2013, and it has resulted in wide-ranging recommendations. In particular, the Review recommends that the Government Communications Security Bureau (the GCSB) and the New Zealand Security Intelligence Service (the NZSIS) and their oversight bodies be covered by a single, comprehensive piece of legislation. It emphasises the need to remove barriers to effective co-operation between the GCSB and the NZSIS and the need to improve transparency and oversight arrangements to give the public greater confidence that the agencies are acting lawfully and appropriately.
The Bill adopts the majority of the Review’s recommendations. In developing its response to the Review, the Government has sought to ensure that the new legislation—
is adaptable to changing circumstances and is technology-neutral; and
reflects New Zealand’s long-standing commitment to human rights, democracy, accountability, and the rule of law; and
is effective, clear, and easy to understand; and
promotes a joined-up and efficient New Zealand intelligence community that engages effectively with other domestic agencies, including law enforcement agencies; and
facilitates effective engagement and co-operation with New Zealand’s international security partners.
The Bill replaces the 4 Acts that currently apply to the GCSB, the NZSIS, and their oversight bodies (the Inspector-General of Intelligence and Security and the Intelligence and Security Committee). Having 1 piece of legislation will make the law much easier to understand and access.
The Bill continues existing protections around political neutrality, lawful advocacy, protest, and dissent and it requires the Director-General of an intelligence and security agency to regularly consult the Leader of the Opposition. Its purpose is expressly framed as to
“protect New Zealand as a free, open, and democratic society”, and a variety of provisions are included to increase transparency around the intelligence and security agencies’ activities. For example, some activities carried out by the GCSB and the NZSIS as part of their functions will be acknowledged in legislation for the first time (for example, the use of assumed identities and human intelligence activities).
The Bill will bring the GCSB and the NZSIS more fully within the ambit of normal State sector arrangements. Specifically, it establishes the NZSIS as a public service department under the State Sector Act 1988 and makes the GCSB fully subject to that Act. The Director-General of each agency will be appointed by the State Services Commissioner, and their terms and conditions will be determined within the State Sector Act 1988 framework.
To remove artificial and confusing barriers to co-operation and to make clear the consistency of purpose and links within the New Zealand intelligence community, the Bill contains shared objectives, functions, and powers for the GCSB and the NZSIS. It contains a single authorisation regime applying to both agencies that covers their intelligence collection and protective security functions.
Warrants may authorise the intelligence and security agencies to carry out an otherwise unlawful activity where it contributes to 1 of the 3 shared objectives of the agencies. The proposed activity must be necessary and proportionate to the purpose for which it is sought to be carried out in order for a warrant to be issued. The authorisation regime also provides for the possibility of joint warrants being issued that enable the agencies to conduct joint operations using the specialist capabilities of both agencies, where this is judged to be appropriate.
All warrants require the approval of the Attorney-General. Where a warrant is sought to collect intelligence about a New Zealander, both the Attorney-General and a Commissioner of Intelligence Warrants will need to approve the activity that the authorisation is sought for. All warrants are subject to review and audit by the Inspector-General of Intelligence and Security.
To support the GCSB and the NZSIS to carry out their functions and to ensure clarity and transparency around their access to information, the Bill contains a comprehensive information-sharing regime. It also significantly increases the number of Privacy Act 1993 information privacy principles applying to the GCSB and the NZSIS, which will give individuals an avenue for making complaints in respect of certain actions taken by the GCSB and the NZSIS where none has previously existed.
The Bill also makes a number of significant enhancements to the oversight institutions and their roles. These include the removal of the current restriction on the Inspector-General of Intelligence and Security inquiring into operationally sensitive matters, and clarifying that the Inspector-General may review warrants on substantive, as well as procedural, grounds. The Intelligence and Security Committee will be able to request that the Inspector-General of Intelligence and Security inquire into any matter relating to the intelligence and security agencies’ compliance with New Zealand law, including human rights law.
The Bill also continues, for an unlimited time, the provisions put in place by the Countering Terrorist Fighters Legislation Bill in 2014, including the amendments to the Passports Act 1992, which enable the refusal of applications for, or cancellation of, New Zealand travel documents of a person if there are reasonable grounds to believe that the person is a danger to national or international security. This Bill includes an additional protection that requires all such decisions regarding New Zealand travel documents to be subject to review by a Commissioner of Intelligence Warrants.