External oversight
Effective and credible external oversight of the intelligence agencies is crucial for assuring the New Zealand public that those agencies’ powers are being used in accordance with the law and with respect for New Zealanders’ right to privacy.
There is an inherent tension, however, between the secrecy required for effective intelligence operations (whereby agencies around the world are tasked by their respective, democratically-elected governments with gaining insights that would not otherwise be available), and legitimate public expectations of government agencies’ transparency. The goal is to balance these two considerations in a way that provides appropriate levels of security and public assurance.
The GCSB is subject to robust oversight, some of which is unique to the intelligence community. These oversight mechanisms were enhanced by legislative amendments in 2017.
The Governor-General, on the recommendation of the Prime Minister, appoints a Chief Commissioner of Intelligence Warrants, and can appoint up to two additional Commissioners of Intelligence Warrants. Commissioners must have previously held office as a Judge of the High Court and are appointed for a term of three years.
Commissioners apply their significant judicial experience, ensuring robust scrutiny is applied to their areas of responsibilities.
The functions of the Commissioners include considering:
- Applications jointly (with the Minister) any warrant that targets a New Zealander (type 1 warrant applications)
- Applications for “practice warrants”, which enable the agencies to carry out activities that are necessary to test, maintain and develop their capabilities or train their staff
- Applications to access “restricted information”, which is certain defined categories of information that are subject to strict statutory restrictions, eg information subject to the secrecy obligations under tax law
- Applications for business records approvals, which in turn enable the Directors-General to issue business records directions to obtain business records from telecommunications providers and financial service providers. Business records do not include the content of communications or web browsing history.
The current Commissioners of Intelligence Warrants are Chief Commissioner, Sir Bruce Robertson and Commissioner, Hon Justice Warwick Gendall.
The Inspector-General of Intelligence and Security (IGIS) is a statutory officer providing independent external oversight and review of the intelligence and security agencies.
The IGIS is responsible for reviewing issues of legality and propriety and provides an independent determination of complaints about GCSB and NZSIS’ conduct. The IGIS also reviews the agencies’ compliance procedures and systems.
The Intelligence and Security Act 2017 made the IGIS role more independent of the responsible Minister. The IGIS can inquire into operationally sensitive matters and has access to security records held by the intelligence and security agencies.
The Inspector-General conducts inquiries into matters, including individual complaints, report findings and recommendations to the Minister. Those reports, excluding matters of security concern, may be found in the Reports section of the Inspector-General of Intelligence and Security's website.
In accordance with the requirements of the protected disclosures Act 2000, the Inspector-General is responsible for receiving protected disclosures by personnel of New Zealand intelligence and security agencies.
The current Inspector-General of Intelligence and Security is Cheryl Gwyn.
The Intelligence and Security Committee (ISC) is the Parliamentary oversight committee for the intelligence agencies, and examines issues of efficacy and efficiency, budgetary matters and policy settings.
Membership of the ISC can be made up of between five and seven members. The Prime Minister is required to consult with the Leader of the Opposition before nominating members to the ISC, and requires the Prime Minister and Leader of the Opposition to have regard to the proportional representation of political parties in the House of Representatives when nominating members.
The functions of the ISC are:
- to examine the policy, administration and expenditure of each intelligence and security agency
- to consider any bill, petition or other matter in relation to an intelligence or security agency referred by the House of Representatives
- to receive and consider the annual reports of GCSB and NZSIS
- to conduct each year, following receipt of the annual report of the agencies, an annual review of the agencies
- to request the Inspector-General to conduct an inquiry into:
- any matter relating to an intelligence and security agency’s compliance with New Zealand law, including human rights law
- the propriety of particular activities of an intelligence and security agency
- to consider any matter (not being a matter relating directly to the activities of an intelligence and security agency) referred to the Committee by the Prime Minister because of that matter’s intelligence or security implications
- to consider and discuss with the Inspector-General his or her annual report.
The Intelligence and Security Act 2017 requires that the Minister responsible for the intelligence and security agencies issue Ministerial Policy Statements in relation to the lawful activities of the agencies that set out any:
- procedures of an intelligence and security agency for authorising the carrying out of an activity relating to a matter
- protections that need to be in place in relation to the matter
- restrictions in relation to the matter.
Each Ministerial Policy Statement sets out guiding principles that GCSB must apply when planning and carrying out these activities and identifies internal policies, procedures, consultation and training requirements in relation to each activity.
Ministerial Policy Statements are published on the New Zealand Intelligence Community website.
The Intelligence and Security Act 2017 requires that the Minister responsible for the intelligence and security agencies issue Ministerial Policy Statements in relation to the lawful activities of the agencies that set out any: procedures of an intelligence and security agency for authorising the carrying out of an activity relating to a matter protections that need to be in place in relation to the matter restrictions in relation to the matter. Each Ministerial Policy Statement sets out guiding principles that GCSB must apply when planning and carrying out these activities and identifies internal policies, procedures, consultation and training requirements in relation to each activity. Ministerial Policy Statements are published on the New Zealand Intelligence Community website (external link) .
The GCSB is also subject to the oversight of other independent authorities such as the Auditor-General, Privacy Commissioner, Ombudsman and the judiciary.