Politicians are failing in the oversight of our intelligence agencies
The NZ Council for Civil Liberties exists to help protect the civil liberties of New Zealanders from government overreach. A key area of concern is, and will always be, the actions of the state security forces such as the police and intelligence agencies. This is the sharp end of government power, where a government can exert force over people, spy on them, damage their reputation, or imprison them.
And, unlike most other government work, that conducted by the intelligence agencies all happens in secret. There is very little transparency into the SIS and the GCSB. Requests under the Official Information Act are often refused for "security reasons". And unlike the Police, the work of the agencies generally does not lead to the truth coming out in court.
As our governments have continually increased the powers of the intelligence agencies, we have continually argued for more and better oversight. The stories that have come out (such as the 2013 Kitteridge Report) revealed the agencies were often incompetent, biased, or didn't understand the laws they worked under. And we feel certain that this is only the tip of the iceberg, that there is much that still remains secret.
In recent years we have been pleased to see that the Inspector General of the Intelligence Service has been given a stronger role in providing oversight, and that the IGIS has taken advantage of this to actually investigate the actions and policies of the agencies, and produce a number of useful and informative reports on their doings. While this still falls short, it has been a significant improvement from the complete lack of oversight in the past.
Report "Warrants issued under the Intelligence and Security Act 2017"
In December 2018 the IGIS released a report Warrants issued under the Intelligence and Security Act 2017. The report showed a number of shortcomings in the warrant applications from the agencies including insufficient detail, inappropriate delegation of power, overly broad warrants, sloppy use of warrants when targeting people, and acting without legal authorisation.
What concerned us was that not one of these warrants was declined – all had been authorised by the responsible Minister and, sometimes, by the Chief Commissioner of Intelligence Warrants. To us this report demonstrated that these people had been failing in their duties to provide sufficiently rigorous oversight of the intelligence agencies.
No government response
We wanted to know what the government was going to do about it so on the 20th of December 2018 we wrote to Jacinda Ardern in her role as Minister of National Security and Intelligence (and therefore Chair of Parliament's Intelligence & Security Committee) to ask her. We received an acknowledgement but no response.
On June the 6th 2019 we again wrote to Jacinda Ardern asking for a response to both our letter and to the shortcomings revealed in the IGIS report. Again we received an acknowledgement but no response.
We don't think this is good enough. Oversight is more than just writing reports; the IGIS has no power to compel agencies to change their behaviour. There is no one in the position to actually apply the criminal penalties provided for in the Intelligence and Security Act. We need to rely on our politicians to provide the ultimate oversight as they are the only ones with power over the intelligence agencies, and it appears they're not doing it.
We believe we deserve better from our political representatives. In particular:
Firstly, the Minister responsible for authorising intelligence warrants needs to do a better job of exercising their duty to authorise or refuse warrant applications. We fail to understand how the IGIS can find so many shortcomings when not a single warrant application was declined.
Secondly, the Ministers responsible for the national security and the intelligence agencies have a moral duty to publicly respond to reports with negative findings from the Inspector-General of Intelligence Services. We should be able to expect that they will acknowledge the findings and tell us what they will do to rectify the situation and restore public faith in the agencies.
Finally, we also believe that politicians have a duty to engage with civil society groups such as the NZ Council of Civil Liberties when we raise serious concerns. Simply ignoring our letters and questions does not fit in with our understanding of how our democracy should function.