Intelligence and security agencies are essential in a modern democracy to protect against security threats and to advance the interests of the nation as a whole.
However, the inherently secret nature of the agencies, along with their intrusive nature and abilities, means it is essential robust and independent oversight exists to ensure they act legally, properly and in a manner consistent with New Zealand’s democratic values.
Through independent oversight, a balance is struck between the secrecy necessary for the agencies to operate effectively and the public’s expectations of accountability and transparency.
Both NZSIS and GCSB are subject to a range of oversight mechanisms.
The most immediate oversight of GCSB and NZSIS is the internal management oversight exercised day-to-day by those agencies’ leadership teams. Good internal oversight provides a reliable “compass” and a solid compliance culture.
The Governor-General, on the recommendation of the Prime Minister, appoints 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 applications)
- Applications by the agencies 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 by the agencies 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 by the agencies for business records approvals, which in turn enable the Directors-General to issue business records directions to obtain business records from telecommunications providers and financial service providers. Business records do not include the content of communications or web browsing history.
The current Commissioners of Intelligence Warrants are Chief Commissioner, Sir Bruce Robertson and Deputy Commissioner, Hon Justice Warwick Gendall.
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 GCSB and NZSIS’ 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 IGIS can inquire into operationally sensitive matters and has access to security records held by the intelligence and security agencies.
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 publications section of the Inspector-General of Intelligence and Security's website.
In accordance with the requirements of the protected disclosures Act 2000, the Inspector-General is responsible for receiving protected disclosures by personnel of New Zealand intelligence and security agencies.
The current Inspector-General of Intelligence and Security is Cheryl Gwyn.
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 regard to the proportional representation of political parties in the House of Representatives when nominating members.
The functions of the ISC are:
- to examine the policy, administration and expenditure of each intelligence and security agency
- to 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 GCSB and NZSIS
- 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 inquiry 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 implications
- to consider and discuss with the Inspector-General his or her annual report
The NZIC is also subject to the oversight of other independent authorities such as the Auditor-General, Privacy Commissioner, Ombudsman and the judiciary.