Cross-Examination: Changing How New Zealand's Intelligence Agencies Operate – Insightful or Irrational?
By Daniel Gambitsis
In New Zealand, we have the impression that we are at a low risk of a terrorist attack and it is true that we have been blessed to have experienced few “terrorist” attacks.[1] Nevertheless, in response to concerns – exaggerated or otherwise – of a growing threat of global terrorism, (with events such as the terror attack tragedy in Nice) our own intelligence legislation is being updated by the government. On one hand, there are credible fears of a persistent erosion of our rights to privacy by the increasing powers of intelligence agencies such as the NSA in the United States or the GCSB in New Zealand. On the other, there is the danger that our privacy may be disproportionately threatened. Do the current reforms to our intelligence legislation cross the line between being a necessary update to our legislation and representing a genuine danger to our privacy?
Summary of New Zealand’s ‘emergency legislation’
New Zealand has had a history of so-called ‘emergency legislation’ to deal with terrorist attacks or national emergencies. The Public Safety Conservation Act 1932 was used on several occasions (most notably upon the outbreak of World War II). The 1932 Act was replaced by the International Terrorism (Emergency Powers) Act 1987, which has never been used although it is still law.[2] It was introduced in response to the Rainbow Warrior bombing in 1985.[3] This Act permits expansive emergency powers such as the declaration of a state of emergency, the destruction of property or censorship of certain publications concerning international terrorist emergencies. The Act is intended to apply in the case of an ‘international terrorist emergency’ which broadly includes any situation ‘threatening, causing, or attempting to cause’ death, serious injury or harm to any persons, or the damages or destruction of property or natural features, in order to ‘coerce, deter of intimidate’ for ‘political aim[s]’.[4]
In response to the 11 September 2001 attacks, Parliament passed the Terrorism Suppression Act 2002, which aims to tackle terrorism and implement New Zealand’s international obligations. It defines a terrorist act,[5] and outlaws participation in and recruitment and financing for terrorist organisations.[6] Two reviews of this controversial Act (which has been criticised, among other reasons, for mislabelling democratic activists) by the Law Commission were both abandoned, with the most recent attempt being in 2013.[7]
Additionally, the Countering Terrorist Fighters Legislation Bill was passed in 2014, under urgency, and was enacted to prevent New Zealanders joining ISIS or perpetrating terrorist acts in New Zealand.[8] It permits surveillance of terrorist suspects without a warrant for up to 24 hours, surveillance on private property in connection with ‘suspected terrorism’, access to Customs data and the cancellation or suspension of passports.[9] This Bill expires in 2017, at the end of the current Parliamentary term.[10] Unsurprisingly, controversy also surrounds this legislation, which was opposed by several parties in Parliament.[11]
The GCSB and the SIS
The Government Communications Security Bureau (the ‘GCSB’, governed by the Government Communications Security Bureau Act 2003) is a public service department which cooperates with other agencies (the Police, the Defence Force and the SIS).[12] Currently, the GCSB is permitted to spy on behalf of other agencies if it has an approved warrant.[13] It contributes to New Zealanders’ ‘national security’, well-being, economic well-being and international relations.[14] It has traditionally been considered a foreign intelligence agency (i.e. it does not spy on New Zealanders), but only on ‘foreign persons and foreign organisations’.[15]
Currently only the Security Intelligence Service (the ‘SIS’), governed by the New Zealand Security Intelligence Service Act 1969, can spy on New Zealanders, where this is relevant ‘to security’ and its associated threats, such as instances of ‘espionage, sabotage, subversion or terrorist acts.[16]
2013 Reforms
The contentious reforms of 2013 responded to the Kitteridge report which concluded that the GCSB lacked the legal basis to perform intelligence acts such as helping the SIS, and several spying scandals (e.g., when the GCSB illegally spied on Kim Dotcom).[17] The reforms have ultimately expanded the GCSB’s role regarding its domestic and cybersecurity functions – to allow it to legally spy on New Zealanders on behalf of the SIS, the police or the Defence forces, or for the purposes of cyber security.[18] The reforms even permitted snooping of New Zealanders’ ‘private communications’ if ‘any party ought reasonably to expect that the communication may be intercepted’.[19] At that time, Prime Minister John Key assured the public that the GCSB would not spy on citizens.[20] Now these very loose and dubious protections for New Zealanders are going down the drain.
2016 Reforms
This round of legislative reform was galvanised by the threat of ISIS and global terrorism generally.[21] New Zealand’s intelligence arrangements were recently reviewed by Sir Michael Cullen and Dame Patsy Reddy.[22] New legislation proposes to bring all the intelligence and security agencies under one act (the New Zealand Intelligence and Security Bill), so as to make their purposes and the relationships between the agencies clear. It will also change how they will be supervised (to replace the separate New Zealand Security Intelligence Service Act 1969, the Government Communications Security Bureau Act 2003 and the Intelligence Committee of Parliament legislation of 1996).[23] The new legislation aims to update the law, explain the GCSB’s powers and to treat our spy agencies as public servants under the purview of the State Services Commission.[24] The changes should, through clarifying its powers, help the GCSB to act without fearing that it is acting illegally.
The GCSB will be allowed to spy on New Zealanders, whereas currently, only the SIS may do this.[25] There will still be a division of labour between the two, although joint warrants may be issued.[26] The Otago Daily Times cites the following example: “The new legislation does not go quite that far - it will limit the GCSB to conduct remote searches of a computer, for example, while the SIS will be permitted to carry out a physical search of a private property.”[27]
The reform introduces a new warranting regime. A warrant is only to be issued concerning New Zealanders when national security is threatened or when the person is beholden to a foreign power.[28] It will no longer be permitted to spy on New Zealanders on the grounds of economic wellbeing and international grounds.[29] This will require a “triple-lock” authorisation to be used, requiring the consent of the Attorney-General, the Commissioner of Security Warrants and the Inspector-General of Intelligence and Security.[30] However a warrant may be used for up to 24 hours before it must be formally applied for in the case of a national security threat.[31] If the warrant were, ipso facto, to be considered inappropriate and declined, all the intelligence gathered would be destroyed. Warrants may also be issued for specific groups or purposes.[32] This falls in line with the recommendations made in Sir Cullen and Dame Reddy’s review.
Moreover, it is now an offence to leak government information – this will carry a maximum sentence of five years jail time. The offence will apply to those with the appropriate security clearance or access to classified information who wrongfully communicate, retain or copy it.[33]
Criticsm
New Zealanders have been assured that the GCSB does not actively monitor New Zealand’s online behaviour.[34] In 2013 there was ferocious opposition to the legislatory reforms, with fierce critiques by the Labour party among the vocal dissenters.[35]
By contrast, during the 2016 reforms National has been careful to make the other parties feel like their concerns are being heard, and acted upon, and has avoided the prevarication and lack of information which surrounded the 2013 reforms.[36] Labour’s opposition to intelligence reform has been much more subdued of late. Still, Labour leader Andrew Little voiced concerns that the definition of national security is too broad and was critical of the threat to privacy, as the legislation will permit the intelligence agencies to access personal information such as birth, death and marriage information, although a warrant is necessary for certain information such as driver licence photos.[37] However, Little’s objections seem like window-dressing given that Labour will support the bill at the first hurdle although it will press for changes before giving full support.
The Green Party vehemently opposes the 2016 recommendations which it considers will engender a “culture of fear and spying”.[38] Nicky Hager postulates that these changes aim to remove barriers to the collection of metadata in New Zealand.[39] These reforms may threaten the rights (such as the right to freedom of thought) enshrined in the New Zealand Bill of Rights Act 1990.[40]
Audrey Young opines that a simple solution in lieu of the new legislation would have been to alter the current SIS legislation so that a name is not required before a warrant is granted.[41] This is already being solved by the new types of warrants. Thus, Young notes, the division of labour between the SIS and the GCSB could have been retained with the two working together when a warrant had been issued.[42] The new capacity for the GCSB to spy on New Zealanders in addition to the SIS raises fears that their powers will only increase now that such a significant barrier has been removed.[43]
This review of New Zealand’s emergency and intelligence legislation picks up on how new measures are typically justified following a notable terrorist attack, and how these measures typically face criticism for compromising New Zealanders’ rights. The lack of concern about the recent reforms, in comparison to the seemingly more engaged reaction to the GCSB reforms of 2013, are symptomatic of a dangerous complacency in the face of the erosion of New Zealanders’ rights. The Government’s transparency in relation to the recent reforms is commendable. However, the public needs to rouse itself and engage with the legislative process and heed the warnings voiced by groups such as the Law Society. At the very least, it is to be hoped that our intelligence agencies continue to refrain from mass surveillance and respect the need for a national security concern, and that the law against leaking government information is not abused to punish well-intentioned whistle-blowers.
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[1] Lance Beath “Story: Terrorism and counter-terrorism” (20 June 2012) <http://www.teara.govt.nz/en/terrorism-and-counter-terrorism/page-1>[2] Audrey Young “Keeping the balance for security agencies” (20 August 2016) <http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11697430>[3] Beath, above n 1, at page 2.[4] Section 2.[5] S 5(1).[6] Beath, above n 1, at page 2.[7] Adam Dudding “Review of terror laws stopped” (15 September 2013) <http://www.stuff.co.nz/national/politics/9166763/Review-of-terror-laws-stopped> Cameron Walker “Terrorism Suppression Act and criminalisation of national liberation groups” (1 April 2014) <http://nzhumanrightsblog.com/uncategorised/the-terrorism-suppression-act-and-criminalisation-of-national-liberation-groups/#_edn1>.[8] Audrey Young “Foreign fighters bill passes 94-27” (9 December 2014) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11371580>[9] Above n 8.[10] Above n 8.[11] Above n 8.[12] Government Communications Security Bureau Act s 8C(1).[13] Nicholas Jones “New law targets those who leak secrets” (15 August 2016) <https://www.odt.co.nz/news/politics/new-law-targets-those-who-leak-secrets>[14] Government Communications Security Bureau Act 2003, s 7.[15] Section 8B(1)(a).[16] Security Intelligence Service Act s 4(1)(a) and s 2(1).[17] Andrea Vance “Demystifying the GCSB bill: Spies and lies” (20 August 2013) <http://www.stuff.co.nz/national/politics/9064984/Demystifying-the-GCSB-bill-Spies-and-lies>[18] Vance, above n 17.[19] Government Communications Security Bureau Act, s 4.[20] Vance, above n 17.[21] “Potential terror threat sparks likely law change” (15 August 2016) <https://www.odt.co.nz/news/politics/potential-terror-threat-sparks-likely-law-change>[22] Above n 21.[23] “Proposed legislation will allow GCSB to spy on NZers” (15 August 2016) <http://www.newstalkzb.co.nz/news/politics/proposed-legislation-will-allow-gcsb-to-spy-on-nzers/>[24] Above n 23.[25] Above n 18.[26] Jones, above n 13.[27] Above n 10.[28] Above n 10.[29] “Spy bill passes first reading” (18 August 2016) <https://www.tvnz.co.nz/one-news/new-zealand/spy-bill-passes-first-reading>[30] Above n 19.[31] Above n 19.[32] Jones, above n 10.[33] Above n 10.[34] Tracy Watkins “New GCSB director Andrew Hampton- a consummate public servant” (23 May 2016) <http://www.stuff.co.nz/national/politics/80303385/New-GCSB-director-a-consummate-public-servant>[35] Tracy Watkins “Controversial GCSB laws pass by two votes” (21 August 2013) <http://www.stuff.co.nz/national/politics/9070435/Controversial-GCSB-laws-pass-by-two-votes>[36] Young, above n 2.[37] Jones, above n 10.[38] Above n 18.[39] Above n 18.[40] Section 13.[41] Young, above n 2.[42] Above n 2.[43] Above n 2.