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New Zealand: Security and Intelligence Bill Introduced

(Aug. 16, 2016) On August 15, 2016, the Prime Minister of New Zealand, John Key, introduced the New Zealand Intelligence and Security Bill 2016 in the Parliament.  (New Zealand Intelligence and Security Bill, NEW ZEALAND PARLIAMENT; New Zealand Intelligence and Security Bill, New Zealand Legislation website (both last visited Aug. 15, 2016).)  The Bill implements the governments response to an independent review of intelligence and security agencies and their relevant governing legislation, which was completed in March 2016.  (Kelly Buchanan, New Zealand: Review of Legislative Framework and Oversight of Security and Intelligence Agencies Completed, GLOBAL LEGAL MONITOR (Mar. 14, 2016).)

The Bill represents “the most significant reform” of intelligence agencies in New Zealand’s history.  (NZ Intelligence and Security Bill 2016, DEPARTMENT OF THE PRIME MINISTER AND CABINET (DPMC) (last visited Aug. 15, 2016).)

In a press release, Key stated that the key aspects of the Bill include:

  • Creating a single Act to cover the agencies, replacing the four separate acts which currently exist.
  • Introducing a new warranting framework for intelligence collection, including a ‘triple lock’ protection for any warrant involving a New Zealander.
  • Enabling more effective cooperation between the NZSIS and GCSB.
  • Improving the oversight of NZSIS and GCSB by strengthening the role of the Inspector-General of Intelligence and Security and expanding parliamentary oversight.
  • Bringing the NZSIS and GCSB further into the core public service, increasing accountability and transparency.  (Press Release, John Key, Intelligence and Security Legislation Introduced, BEEHIVE.GOVT.NZ (Aug. 15, 2016).)

The New Zealand Security Intelligence Service (NZSIS) is a civilian intelligence agency with the roles of investigating threats to security, collecting foreign intelligence, and providing a range of protective security advice and services to the government.  (Who Are We, NZSIS (last visited Aug. 15, 2016).)  The Government Communications Security Bureau (GCSB) “ensures the integrity and confidentiality of government information, and investigates and analyses cyber incidents against New Zealand’s critical infrastructure.”  (About Us, GCSB (last modified May 24, 2016).)  It also currently collects foreign intelligence bearing on New Zealand’s interests.  (Id.)

Collection of Intelligence from New Zealanders

One aspect of the legislation that is likely to be controversial is the proposal to empower the GCSB to intercept the private communications of New Zealanders.  Currently, only the NZSIS can “apply for warrants to target New Zealanders on economic or international wellbeing grounds.”  (Protections for New Zealanders, DPMC (last visited Aug. 15, 2016).)  Under the Bill, both agencies would need to apply for a “Type 1” intelligence warrant in order to target New Zealanders.  This warrant would require the approval of both the Attorney-General and a Commissioner of Intelligence Warrants and would be subject to review by the Inspector-General of Intelligence and Security.  The agencies “would also be restricted to targeting New Zealanders on the grounds of national security.”  (Id.; New Zealand Intelligence and Security Bill, cls 51, 53 & 55.)

Definition of National Security

A further matter that is likely to see considerable discussion and debate is the Bill’s definition of “national security.”  Currently, the Bill adopts the definition recommended by the independent review, stating:

In this Act, national security means the protection against—
(a) threats, or potential threats, to New Zealand’s status as a free and democratic society from unlawful acts or foreign interference:
(b) imminent threats to the life and safety of New Zealanders overseas:
(c) threats, or potential threats, that may cause serious harm to the safety or quality of life of the New Zealand population:
(d) unlawful acts, or acts of foreign interference, that may cause serious damage to New Zealand’s economic security or international relations:
(e) threats, or potential threats, to the integrity of information or infrastructure of critical importance to New Zealand:
(f) threats, or potential threats, that may cause serious harm to the safety of a population of another country as a result of unlawful acts by a New Zealander that are ideologically, religiously, or politically motivated:
(g) threats, or potential threats, to international security.  (New Zealand Security and Intelligence Bill, cl 5.)

The Department of the Prime Minister and Cabinet notes,”[o]fficials and Parliamentary Counsel have advised this definition has a number of shortcomings – its scope is unclear and it is unnecessarily complex.”  (Defining National Security, DPMC (last visited Aug. 15, 2016).)  An alternative approach, whereby national security would not be defined in the legislation and instead the types of activities and threats that are covered would be listed, was put forward by officials from the relevant government agencies.  (Id.

Enhanced Oversight of Intelligence Agencies

In addition to the new warranting framework for intelligence activities, the Bill contains provisions that seek to strengthen the oversight and accountability framework applicable to the NZSIS and GCSB.  This includes:

  • Increasing the membership of the Parliamentary Intelligence and Security Committee (ISC) to between five and seven members.
  • Requiring the Prime Minister to consult with the Leader of the Opposition before nominating members.
  • Allowing the ISC to request that the Inspector-General of Intelligence and Security (IGIS) inquire into any matter about the intelligence and security agencies’ compliance with the law and propriety of their activities.
  • Preserving the independence of the IGIS from the [NZSIS], [GCSB] and the responsible Minister/s and the Prime Minister in legislation.
  • Clarifying that the IGIS may review the propriety and implementation of all warrants.  This means oversight occurs before, during and after any activity.Permitting the IGIS to generally inquire into operationally sensitive matters.  (There is currently a restriction which, in practice, is not enforced).  (Strengthening Oversight of NZSIS and GCSB, DPMC (last visited Aug. 15, 2016).)

Reactions from Other Parties

Key said that the governing National Party is “keen to get broad political support for this legislation.”  (Intelligence and Security Legislation Introduced, supra.)  The main opposition party, the Labour Party, said that “it will support the bill to select committee so the issues can be debated nationwide and important amendments can be made.”  (Corrin Dann, Government Reveals New Law to Allow GCSB to Spy on Kiwis, TVNZ (Aug. 15, 2016).)  The party’s leader, Andrew Little, said that the legislation does need updating, but raised concerns about the breadth of the definition of national security and the lack of certain protections for personal information that had been suggested by the independent review.  (Id.)

The Green Party stated its view that the expansion of intelligence agencies’ powers in the Bill is “one of the most significant erosions in New Zealanders’ privacy in recent times.”  (New GCSB Bill Allows Spying on Kiwis, STUFF.CO.NZ (Aug. 15, 2016).)