The IGIS Reference Group: a toe inside the tent

As you may have heard, the Inspector-General of Intelligence and Security has established a Reference Group and New Zealand Council for Civil Liberties chairperson Thomas Beagle is one of its eleven members.

I'd like to explain why we supported Thomas joining the Reference Group, and summarise the discussion and considerations of the Council's executive committee in coming to that decision.

Firstly, it's important to understand what the Reference Group is and what it is not.

If New Zealand is to have intelligence agencies, independent oversight is critical. The Inspector-General's role within our oversight regime isn't just to scrutinise the agencies for compliance with the law, but also whether their conduct would be considered proper by reasonable New Zealanders. No one person can claim to know what all New Zealanders think, so it is important for IGIS to operate in a consultative way. The Reference Group is one way to achieve this.

(This is why it is important that, rather than being “objective,” the Reference Group members represent a diversity of views and expert opinions. It makes sense to include people such as journalists and lawyers who have, from time to time, been highly critical of both the agencies and oversight.)

What the group does not have (contrary to some claims) is any powers. It will not be overseeing the agencies itself, or the office of the Inspector-General. No classified information will be shared with the Reference Group. The information flow is intended to be “one-way”.

We expect the Reference Group, which will meet two to three times per year, will help the IGIS prioritise her office's work programme according to the values of New Zealanders. Thomas' involvement will ensure a civil liberties perspective is considered.

Despite being merely a kind of consultation, there are of course risks in stepping "inside the tent" to any degree.

The most obvious risk is one of "capture" - will Thomas or the Council be limited in any way as a result of being involved? From the outset we have been assured that Thomas’ usual activities will not be constrained. Operating under Chatham House rules, the members can share what they learn as long as they don’t reveal who said it. Moreover, the Council will not resile from criticising the powers given to intelligence agencies, their actions, or any failures of oversight and compliance.

Another risk is that we lend credibility to an oversight regime that some may see as ineffective or superficial. Is this Reference Group simply window-dressing to gain credibility? Nothing to date has given us this impression - this appears to be genuine consultation. Thomas' involvement should not be construed as Council support for spying or that we consider the current oversight regime completely adequate. On the contrary, this is a small step towards improved civilian input into oversight of agencies with some of the most intrusive possible powers of the state.

We believe having input into the Inspector-General's work outweighs these risks. I am heartened to see the calibre of Reference Group members, who must have come to similar conclusions.

We will continue to assess whether the Reference Group is effective, and whether involvement with it is a net gain to the civil liberties interests of New Zealanders and others.

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