Intelligence and Security in a Free Society Report of the First Independent Review of Intelligence and Security in New Zealand Hon Sir Michael Cullen, KNZM and Dame Patsy Reddy, DNZM 29 February 2016 Foreword The place of intelligence and security agencies in a free society arouses a wide range of responses and passions. For some, the security of the state and of the individuals within it overrides other considerations. That is especially so in times of obvious international security threats. Such a view may be summed up in the often used phrase “you have nothing to fear if you have nothing to hide”. For others, the opposite is true: freedom and liberty are so precious that any secret activity by state agencies must inevitably threaten those human rights, if only through the chilling effect of the fear of surveillance. Most people’s views probably lie somewhere between these two extremes. Ours certainly do. All that we have heard and read during this review have helped lead us to that position. Neither extreme reflects history, experience, or the realities of the modern world, especially with its borderless and rapidly multiplying forms of communication, its ease of fast international mobility and its increasingly complex security challenges. Our review and report arises out of legislation passed in 2013 which included a requirement for periodic reviews “of the intelligence and security agencies, the legislation governing them, and their oversight legislation”. In the event our terms of reference were limited to the legislative aspects. Accordingly, we have not undertaken a review of the agencies (of which there have, in fact, been a number in the last decade, including a major performance review in 2014). We have, nevertheless, tried to develop a clear understanding of what the agencies do, how they do it, and what the rationale is for their existence. That has enabled us to develop what we hope is a clear and consistent set of recommendations for legislative change. Our central conclusion is that 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 so as to protect those freedoms and liberties that are part of what we are as a nation. 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. There should always be debate about how best to ensure that purpose is achieved. Freedom and liberty cannot be preserved either in a vacuum of apathy or in an atmosphere of tolerance of the abuse of power. But nor can they be preserved by wilfully or casually ignoring the existence of those who reject or threaten the values of freedom and liberty. Our report proposes a legislative framework designed to encompass both those enduring truths. Hon Sir Michael Cullen KNZM Dame Patsy Reddy DNZM Contents EXECUTIVE SUMMARY 1 Key issues identified 2 Our proposals 3 Outline of the report 4 Summary of key recommendations 5 CHAPTER 1: INTRODUCTION 14 Collective security and individual rights 14 Our review 18 Global context 22 CHAPTER 2: INTELLIGENCE 31 What is intelligence? 31 The value of intelligence to decision makers 32 Why does some intelligence need to be collected in secret? 33 Why do we need special intelligence and security agencies? 33 CHAPTER 3: NEW ZEALAND’S INTELLIGENCE SYSTEM 36 Setting priorities 36 Collection 38 Assessment 46 Oversight 47 Protections for whistle-blowers 51 CHAPTER 4: TRANSPARENCY AND ACCOUNTABILITY 52 The need for robust oversight 52 Improving oversight in New Zealand 54 Single Act 55 Integrating the Agencies within the public sector 56 Arrangements with foreign partners 58 Centralising intelligence assessments 60 Better intelligence co-ordination 61 Role of the Inspector-General of Intelligence and Security 62 Role of the Intelligence and Security Committee 71 CHAPTER 5: WHAT SHOULD THE AGENCIES DO? 74 Role of the intelligence and security agencies 74 What should the Agencies’ objectives be? 82 What should the Agencies’ functions be? 83 Protecting New Zealanders 88 What is national security? 92 CHAPTER 6: HOW SHOULD THE AGENCIES OPERATE? 95 The Agencies’ current authorisation frameworks 95 A comprehensive authorisation regime 99 Authorisation in urgent situations 118 Cover for operations and employees 122 Immunities 125 CHAPTER 7: ACCESSING AND USING INFORMATION 130 Access to information held by government agencies 131 CHAPTER 8: COUNTERING FOREIGN TERRORIST FIGHTERS 137 Extended powers to cancel, suspend or refuse to issue travel documents 138 Access to Customs information for counter-terrorism purposes 139 NZSIS counter-terrorism powers 140 Should the new provisions be extended? 141 CONCLUDING REMARKS 146 ANNEX A: TERMS OF REFERENCE 148 ANNEX B: MEETINGS WITH INDIVIDUALS AND ORGANISATIONS 149 ANNEX C: FULL LIST OF RECOMMENDATIONS 152 ANNEX D: NEW ZEALAND’S INTELLIGENCE SYSTEM 166 ANNEX E: OUTLINE OF PROPOSED SINGLE ACT 167 ANNEX F: PROPOSED AUTHORISATION FRAMEWORK 169 ANNEX G: GLOSSARY OF TERMS 170 Page | 1 Executive summary Executive summary 1. We were appointed by the Government as independent reviewers to conduct 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) (together, the Agencies). Amendments made to the Intelligence and Security Committee Act 1996 in 2013 require a review of the Agencies, the legislation governing them and their oversight legislation every five to seven years. 2. Our terms of reference (which are set out in full in Annex A) directed us to determine: whether the legislative frameworks of the Agencies are well placed to protect New Zealand’s current and future national security, while protecting individual rights whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure the Agencies act lawfully and maintain public confidence whether the legislative provisions arising from the Countering Foreign Terrorist Fighters legislation, which expire on 31 March 2017, should be extended or modified, and whether the definition of “private communication” in the legislation governing the GCSB is satisfactory. 3. The primary purpose of our report is to set out a basis for comprehensive reform of the legislation relating to the Agencies. We also hope it will help to provide some clarity, so far as possible, about the purpose of intelligence and security agencies and what they do. 4. The need to maintain both security and the rights and liberties of New Zealanders has been at the forefront of our minds. Given the intrusive nature of the Agencies’ activities, New Zealanders are understandably concerned about whether those activities are justifiable. 5. This concern is not helped by the fact that the Agencies’ activities have been kept largely in the shadows. To secure public confidence in the modern world, the Agencies need to be able to demonstrate their value to New Zealanders. The legislation governing the Agencies also needs to include appropriate external and independent checks and balances. Because the Agencies cannot always be entirely open about their activities, the public needs to be able to count on oversight and accountability mechanisms to ensure they act lawfully and reasonably. 6. Another important part of the backdrop to our review is the need to ensure that the legislation allows for changes in the nature of threats and advances in technology. We are, after all, living in a time when change and uncertainty are ever-present. The Agencies must be able to adapt their activities to continue to meet New Zealand’s needs. Page | 2 Executive summary Key issues identified 7. It quickly became apparent to us that there were a number of deficiencies in the Agencies’ current legislative frameworks. 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. 8. First, lack of clarity in the legislation means the Agencies and their oversight bodies are at times uncertain about what the law does and does not permit, which makes it difficult to ensure compliance. Critical reviews in the past1 have led the Agencies, particularly the GCSB, to take a very conservative approach to interpreting their legislation. While we understand the reason for this, and it is certainly preferable to a disregard for the law, this overly cautious approach does mean that the GCSB is not as effective or as efficient as it could be. The legislation needs to set out clearly what the Agencies can do, in what circumstances and subject to what protections for individuals. 9. Second, the inconsistencies between the Government Communications Security Bureau Act 2003 (GCSB Act) and the New Zealand Security Intelligence Service Act 1969 (NZSIS Act) – in terms of the Agencies’ functions, powers and authorisation regimes – create barriers to the Agencies working together. To provide the best possible foundation for well-informed decision-making, the government needs to receive intelligence that is comprehensive and robustly tested. 10. The nature of security threats and the methods of communication used by those seeking to harm New Zealand’s interests have changed drastically since the Agencies were established. We are living in an increasingly globalised world where threats do not respect geographical boundaries. In the modern technological and online environment, even internal threats to security can sometimes only be discovered or investigated using high-end electronic intelligence capabilities. The Agencies need to be able to combine their skills and knowledge to provide the information that the government requires, and the legislation should facilitate that.