More scope, control urged for spies

New Zealand’s intelligence agencies should have greater abilities to spy on its people but with stricter requirements on when they can do so and stronger oversight of their work, a report says.

The report into the intelligence and security laws has recommended a single piece of legislation be established to cover both the Government Communications and Security Bureau (GCSB) and the Security Intelligence Service (SIS) – and its authors would have recommended a merger of the two agencies if they had been allowed.

The report, from former deputy prime minister Sir Michael Cullen and Dame Patsy Reddy, was commissioned by the Government following revelations and damning reports about the spy agencies.

The report said there was a ‘‘lack of clarity’’ about how existing laws covered the agencies’ work, while there was a lack of comprehensive oversight to authorise their activities.

The report recommends the removal of current restrictions on the GCSB intercepting New Zealanders’ private communications.

Instead, it says protections should be implemented through stronger government oversight, with some form of authorisation required for all of the agencies’ intelligence and security work.

‘‘The agencies need to be able to combine their skills and knowledge to provide the information that the government requires, and the legislation should facilitate that.’’

However, it says warrants for spying on New Zealanders should only be allowed for the purposes of protecting national security, rather than its ‘‘economic and international well-being’’.

The report proposes a three-tier authorisation framework for intelligence and security activities, with the highest scrutiny reserved for otherwise unlawful activities targeting a New Zealand citizen, permanent resident or organisation, which would require the approval of the attorney-general and a judicial commissioner.

It said there should be an override of the authorisation process for urgent or emergency situations, allowing the agencies to obtain a warrant with only the attorney-general’s permission, or an agency director if a minister could not be contacted.

If that happened, the chief commissioner should be notified immediately, with the warrant able to be cancelled at any time.

Cullen said the establishment of a single act covering both agencies was the ‘‘central recommendation’’ of the report.

Existing laws were outdated and confusing, making it difficult to understand what the GCSB and SIS could and could not do.

‘‘Most importantly, it leads . . . to a lot of contradiction, inconsistent definitions, unclear interaction between the two at a time when the functional division between SIS and GCSB is inevitably becoming more and more blurred.’’

Cullen said spying laws passed in 2014 to allow the GCSB to spy on New Zealanders had not solved the problem, with a lack of legal clarity and ‘‘some pretty condemnatory reviews’’ in recent years making the agency ‘‘extremely riskaverse’’.

Removing all restrictions on spying on New Zealanders, rather than adding specific exceptions, was the only way to solve the issue, he said.

‘‘If you try to graft on some exceptions . . . you simply end up with more contradiction, more conflict, more uncertainty about what it is you can do.

‘‘New Zealanders’ rights should not be protected by having incom- petent law – that is a very bad way of protecting our rights.’’

Examples of where the GCSB could possibly obtain a warrant to spy on New Zealanders included suspected terrorist activities and serious crimes like paedophile rings.

Cullen denied the report proposed a ‘‘vast extension of power’’, saying it was simply making clearer what the agencies could do, while strengthening checks and balances on their activities.

The report also recommends: making both the GCSB and SIS public service departments;

introducing a panel of at least three judicial commissioners to review intelligence warrant applications;

strengthening the powers and role of the inspector-general of intelligence and security to assert their independence;

and increasing the size of Parliament’s intelligence and security committee from five MPs to seven, with the members selected by the prime minister and endorsed by Parliament.

Cullen and Reddy support the extension of foreign fighters legislation, introduced in 2014 to stop suspected foreign fighters from leaving the country or carrying out terrorist acts in New Zealand.

However, the report recommends that any decision to cancel passports for up to three years be reviewed by a judicial commissioner, while visual surveillance on terrorist suspects should require the same authorisations as for other cases.

Cullen said the terms of reference for the report excluded a merger of the two agencies but it was an idea that would have won his support.

‘‘If we had a blank sheet on that matter, quite probably we’d have recommended a merger ... because technologically, increasingly it makes no sense.’’

The report and any associated legislation will go through a full select committee process with public submissions.