Letter re the failings of the warranting process for the SIS and GCSB

Minister for National Security and Intelligence

Minister Ardern,

The New Zealand Council for Civil Liberties would like to know what actions the Minister intends the Government to take in response to the Inspector General of Intelligence Services’ (IGIS) December 2018 report Warrants Issued Under the Intelligence and Security Act 2017.

The Council has long taken an interest in the intrusion of the state into the privacy of New Zealanders. In our submission on the then proposed Intelligence and Security Act 2017 (ISA), we noted “the lack of consideration of what human rights and civil liberties in a free society look like and how they might be weakened by government spying.” 

Oversight

Fostering the creation of effective means of democratic oversight of all government activities is a focus of the Council’s work. In our submission on the ISA we noted the lack of effective oversight. We have also drawn attention to ways in which oversight could be improved in our involvement with the IGIS Reference Group. The IGIS lacks sufficient powers of enforcement and this allows agencies to ignore IGIS. There is no arm of government, other than the Minister, which could act as a check on the intelligence services.

Action required

While the Council believes that the Minister owes the public a detailed and substantive response to all of the reports concerns, we would like to highlight the following sections.

  • In section 84 the IGIS reports that they have not been provided sufficient detail in warrant applications to perform meaningful oversight.

  • In section 94 the IGIS reports that they believe that in some circumstances NZSIS has effectively delegated the warrant issuer’s powers to themselves.

  • In sections 104 through 108 the IGIS reports that warrants are issued for overly broad purposes, providing “no meaningful basis for identifying what is proportionate and what is not.”

  • In sections 109 through 120 the IGIS reports that definition “of  targets was so wide or loose that it was impossible or very hard to tell with any certainty who would and would not fall within it.”

  • In section 130 the IGIS reports instances where NZSIS failed to assess whether activity was proportionate, because it was seeking a blank cheque for a broad range of possible activities rather than having an intended objective as required by the ISA.

  • In section 132 the IGIS reports NZSIS failed to provide “the level of analysis that the law required.”

  • In section 133 the IGIS reports that they doubt the “necessity and proportionality” of a number of warrants.

  • In section 141 the IGIS reports that GCSB has no legal authorisation for some of its activities.

  • Finally, in sections 143 to 148 the IGIS reports that GCSB is spying on people for whom they have merely reason to suspect that they have permission rather than reason to believe believe they have permission.

In summary, the Inspector General makes it clear in their report that they are not merely concerned about their ability to oversee the intelligence services, but also concerned about the legality of the activities of the intelligence services.  

Accountability

By failing to comply with the ISA, the intelligence services continue to behave as though they are above the law. This appears to be normal: the 2013 Kitteridge report showed that GCSB had been breaking the law and spying on New Zealanders. The “Report of the First Independent Review of Intelligence and Security in New Zealand, Intelligence and Security in a Free Society 2016” identified that people in the intelligence agencies had been breaking laws to obtain and use false identities.  

To the best of our knowledge, no member of NZSIS or GCSB has been charged with breaking any of these laws. Instead the ISA was enacted to change the status of these acts to make them lawful in the future. Now, the IGIS has reported that the intelligence services are failing to comply with the ISA. The Council calls on the Minister to reprimand the intelligence services for failing to comply with the ISA, to direct the intelligence services to comply with the ISA from now on, and to amend the ISA to create effective penalties to punish and dissuade future transgressions.

Approving flawed warrant applications

The Council is also gravely disappointed in the decisions of the Minister and the Chief Commissioner of Intelligence Warrants to approve every warrant application presented to them. Universal approval under any circumstances would suggest that the Minister is not interested in performing their duties.

Given the systemic flaws in the applications described by the IGIS, the Council believes that the Minister has failed to exercise their statutory duties and has thereby undermined the entire process. The Council is highly critical of lack of apparent action by the Minister and is concerned that this be remedied forthwith.

Restoring public confidence in this flawed oversight process is the Minister’s duty.  We eagerly await decisive action.

Regards,

Thomas Beagle
Chairperson
NZ Council for Civil Liberties

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