New Zealand Law Society - Independent security review report released

Independent security review report released

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Independent reviewers Sir Michael Cullen and Dame Patsy Reddy have released a report on the first statutory review of New Zealand's intelligence and security agencies, the Government Communications Security  Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS).

Entitled Intelligence and Security in a Free Society, the report says there should be a single, integrated and comprehensive Act of Parliament that lays out in plain English how the agencies are constituted, what their purposes are, how all their intelligence and security activities are authorised, and how they are overseen.

"The Act should state clearly that its fundamental purpose is the protection of New Zealand as a free, open and democratic society. That then becomes the guiding principle by which the activities of the agencies must be undertaken and judged," the reviewers say in a Foreword to their report.

A number of deficiencies in the agencies' current legislative frameworks are identified.

"The legislation establishing the agencies is not comprehensive, is inconsistent between the two agencies, can be difficult to interpret and has not kept pace with the changing technological environment. This has led to some significant problems."

Among the key recommendations are inclusion in the new legislation of some form of authorisation for all of the agencies' intelligence and security activities, to ensure that appropriate safeguards apply to everything they do.

A three-tiered approach to authorisation of the agencies' activities is recommended, with higher levels of scrutiny for activity that is more intrusive or that targets New Zealanders.

The highest level of authorisation would be a warrant approved by the Attorney-General and a judicial commissioner. This would be required for any activities that would otherwise by unlawful and are for the purpose of targeting a New Zealand citizen, permanent resident or organisation.

The second tier of authorisation would be a warrant issued by the Attorney-General. This would be required for the agencies to carry out any activities that would otherwise be unlawful, but are not for the purpose of targeting New Zealand citizens, permanent residents or organisations.

The lowest level of authorisation would be a policy statement issued by the Minister responsible for the agencies after being referred to the Inspector-General for comment. This would cover activity that is lawful without a tier 1 or 2 authorisation (such as collection of open source information, surveillance in public places or access to information infrastructures with consent).

The reviewers recommend a panel of at least three judicial commissioners, headed by a Chief Commissioner of Intelligence Warrants. A judicial commissioner should be available at all times to ensure that applications for tier 1 authorisations can be dealt with promptly. The judicial commissioners could either be retired or sitting judges.

Enhancement of the functions and powers of the Inspector-General of Intelligence and Security is recommended. The reviewers recommend broadening the category of persons who can complain to the Inspector-General to include non-New Zealanders.

Increasing the size of Parliament's Intelligence and Security Committee to allow for greater flexibility in representation is also recommended.

In a statement Prime Minister John Key has said the Government must now carefully consider its response to these recommendations and it will do so with the intention of reaching as broad a political consensus as possible