A democracy always needs to carefully balance the right of citizens to go about their business undisturbed, and the right of the State to protect national interests.
The NZSIS cannot reveal as much about its activities as other government departments because effectively protecting national security requires a certain level of secrecy.
The NZSIS is subject to robust oversight. These oversight mechanisms were enhanced by legislative amendments in 2017.
Commissioners of Intelligence Warrants
The Governor-General, on the recommendation of the Prime Minister, appoint 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 application)
- 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 approval, which in turn enable the Directors-General to issue business records directions to obtain business records from telecommunications providers. Business records do not include the contents 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
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 NZSIS and GCSB' 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 Inspector-General is authorised to see any material held by the NZSIS, including sensitive operational information, and has a right of access to NZSIS staff, premises and records in order to fulfil these oversight and review functions.
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's website (www.igis.govt.nz).
The current Inspector-General is Cheryl Gwyn.
For more details of the Inspector-General's functions, see Part 6 of the Intelligence and Security Act 2017.
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 regards to the proportional representation of political parties in the House of Representatives when nominating members.
The functions of the ISC
- to examine the policy, administration and expenditure of each intelligence and security agency
- 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 the NZSIS and GCSB
- 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 enquiry 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 implication
- to consider and discuss with the Inspector-General his or her annual report.
Ministerial Policy Statement
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
Other accountability and oversight authorities
This NZSIS is also subject to the oversight of other independent authorities such as the Auditor-General, Privacy Commissioner, Ombudsman and the judiciary.