Thursday, September 29, 2022

Graeme Edgeler: The Periodic Review of the Intelligence and Security Act 2017

When the Intelligence and Security Act was passed in 2017, it required that every five to seven years, that the Intelligence Agencies and the Act itself be reviewed. Following from the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain, the review was moved up.

The Royal Commission made a number of recommendations, including proposing the creation of a third intelligence and security agency to work alongside the NZSIS and GSCB, with overall responsibility for strategic intelligence and security issues and with responsibility for counterterrorism.

There are probably a lot of areas in which reform is needed, but a particular area is democratic oversight. Intelligence and security agencies are by their nature both invasive and secretive, which reinforces the requirement for strong oversight. The limitations placed on the House of Representatives in holding New Zealand security and intelligence agencies to account are one area where New Zealand’s current laws are seriously deficient.

Parliament’s Intelligence and Security Committee is the only one of the three major oversight bodies of New Zealand’s intelligence and security agencies in a position to provide a democratic check on the actions of the agencies, and on the decisions of the Minister in approving highly intrusive surveillance, but it is also the only one that is statutorily barred from know what New Zealand’s security agencies are actually doing.

The Need to Expand the Role and Functions of the Committee

It is a slight on the oversight function of the House that that Committee’s role is so highly circumscribed. For example, the Committee can request the Inspector-General to inquire into matters, but is prohibited from considering reports of the Inspector-General arising from those requests. This should be remedied.

Notably, the role, function and powers of the Committee have not increased since the Committee was created in the Intelligence and Security Committee Act 1996.

The Intelligence and Security Act 2017 strengthened the oversight by the Inspector-General of Intelligence and widened the role of the Commissioner for Security Warrants, but left the Intelligence and Security Committee largely defanged. It is regrettable that the opportunity was not taken to also enhance the role of the Committee.

Importance and Utility of Democratic Oversight of Intelligence and Security Agencies

It is difficult for a Parliament to fulfil its usual oversight function with respect to the Intelligence Agencies. It cannot know (and we cannot know) the full details of what our intelligence agencies do, which makes the imperative of oversight by a committee with access to such information all the more important.

Intelligence warrants involve substantial inroads into privacy that, if either too widespread, or undertaken for an insufficiently compelling purpose, society would rightly deprecate. They permit infringements of liberty akin to search warrants, but are a different beast: ultimately, the subject of a search warrant, or an interception warrant is likely to find out about the search conducted, and to have the ability to seek redress.

This will rarely be the case will intelligence warrants. While both involve the exercise of judicial (or quasi-judicial) oversight before they are granted, there is no post-search opportunity to challenge the intrusion.

Given this, there is a role for a democratic oversight, not least because there is no-one else to do it.

An example of the role that the properly constituted Committee would be to provide input into proposed intelligence gathering programmes, and the assessment of whether the imposition on privacy rights is correctly balanced. Were the GCSB to decide that it wished to intercept every text message in New Zealand, to have computers keyword search them, and then to have people look at messages assessed by that algorithm as being of interest, would that be a reasonable limit on the rights of people to have their correspondence protected from unreasonable intrusion? Democratic input would be proper, and it cannot be provided without the Committee’s rule being expanded.

The Committee should also be able to play a role in oversight of the response to reports conducted by the Inspector-General. As a matter of practice, all reports of the Inspector-General should stand referred to the Committee, which could then determine whether to receive a briefing, conduct a further inquiry, or might resolve to seek advice six months or a year later, to ensure that recommendations are being appropriately implemented. Importantly, the Committee should receive the classified versions of reports of the Inspector-General.

Access to Highly Classified Material

To enable it to fulfil this role, the Committee should have access to much more information than it is presently allowed. Under the current law, the information the Committee can see is subject to the decision of the Director-General, who may withhold “sensitive” information.

While there will limits on the information provided to the Committee (for example information about ongoing operations), information about past should be able to be provided, in the same way it is provided to the Inspector-General. Instead, the general focus should be on ensuring that sensitive and highly classified material can be safely shared with the Committee so that it may do its job.

When the Intelligence and Security Bill was going through Parliament in 2017, there was a campaign against it, in part based on the understanding that parts of it gave legislative approval to mass surveillance. The Government assured us that this was not the case, but the simple point is that if the GCSB were to try to use the powers to obtain warrants to access a class of information infrastructure, this fact could be withheld from the Committee. This is not acceptable.

The Committee may not be able to release sensitive information to the public, but it should be able to be in a position to say: we have access to highly classified information about the surveillance being undertaken New Zealand’s intelligence agencies, and there is no mass surveillance. That it cannot realistically do this at present because it can be denied the information needed to make such a statement is a major democratic deficit.

Rather than leaving decision up the agencies that are supposed to be subject to scrutiny, the information that may be withheld from the Committee should be both more clearly spelled out in the statute, and more narrowly tailored, following the law changes in the United Kingdom.

In addition, the Committee should expect to routinely meet outside of Parliament in secure premises to enable it to undertake its work.

The United Kingdom Experience

In a recent interview on TVNZ’s Q+A, former Minister Responsible for the GCSB and in Charge of the New Zealand Security Intelligence Service Hon. Chris Finlayson KC noted that the increased checks and balances were largely working well, but observed that the Committee “could be beefed up”. In his memoir, Finlayson compared the Committee to its United Kingdom counterpart.

Like New Zealand, the Parliament of the United Kingdom has a committee with statutory responsibility for oversight of its Intelligence Community. Originally created in 1994, the role of its Intelligence and Security Committee was expanded in 2013. It has for example, recently published a 129-page report on its inquiry into Extreme Right-Wing Terrorism, and has four other ongoing Inquiries.

While the Joint Committee in the United Kingdom has restrictions limiting its inquiring into “any ongoing intelligence or security operation”, unlike New Zealand’s Intelligence and Security Committee, it is not completely prohibited from inquiring into all “operationally sensitive” matters and all matters relating “to intelligence collection and production methods”.

The changes that took place in the laws governing the United Kingdom Committee should be adopted in New Zealand.

Membership of the Intelligence and Security Committee

A part of ensuring that the Committee can properly conduct oversight of the Government’s intelligence and security policy, and of the security agencies is ensuring that its membership is distinct from the executive.

The fact that the Committee is chaired by the Prime Minister is strong evidence that the Committee is not to be taken seriously as a means of holding the Government to account.

The Prime Minister should not only not chair the Committee, he or she should not be on it. If anything, the Prime Minister, as the person who generally holds the overall National Security responsibility, should be a witness before the Committee just as other ministers are when their ministries undergo their annual reviews.

Again, the experience of the United Kingdom joint committee may be a useful guide. Its Intelligence and Security does not include members of the executive, but like New Zealand’s, is nominated by the Prime Minister under statutory criteria including the agreement of the Leader of the Opposition. It selects its own Chair, and notably, its current Chair was selected by the Committee over the objection of the Government, which preferred another candidate.

While the New Zealand Parliament is smaller than the UK Parliament, it should nonetheless be possible to have a committee comprising sufficiently senior or knowledgeable members without providing for the Prime Minister to take part, especially if the Committee is given a serious role to play in the oversight of New Zealand’s intelligence agencies.

The Christchurch Attack Royal Commission argued that New Zealand should “strengthen the role of the Parliamentary Intelligence and Security Committee so that it can provide better and informed cross-parliamentary oversight of the national security system (including the counter-terrorism effort) and priority setting, and members can access sensitive information as necessary for such oversight.” On this, at least, they were right.

Submissions to the panel close at the end of the week.

Graeme Edgeler is a Wellington barrister with an interest in electoral and constitutional law. This article was originally published HERE

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