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    Intelligence andSecurity in a

    Free Society  Report of the First Independent Review of Intelligence and

    Security in New Zealand 

    Hon Sir Michael Cullen, KNZM and Dame Patsy Reddy, DNZM

    29 February 2016

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    Foreword

    The place of intelligence and security agencies in a free society arouses a wide range of

    responses and passions. For some, the security of the state and of the individuals within it

    overrides other considerations. That is especially so in times of obvious international

    security threats. Such a view may be summed up in the often used phrase “you have

    nothing to fear if you have nothing to hide”. 

    For others, the opposite is true: freedom and liberty are so precious that any secret activity

    by state agencies must inevitably threaten those human rights, if only through the chilling

    effect of the fear of surveillance.

    Most people’s views probably lie somewhere between these two extremes. Ours certainly

    do. All that we have heard and read during this review have helped lead us to that position.

    Neither extreme reflects history, experience, or the realities of the modern world, especially

    with its borderless and rapidly multiplying forms of communication, its ease of fast

    international mobility and its increasingly complex security challenges.

    Our review and report arises out of legislation passed in 2013 which included a requirement

    for periodic reviews “of the intelligence and security agencies, the legislation governing

    them, and their oversight legislation”.  In the event our terms of reference were limited to the legislative aspects. Accordingly, we have not undertaken a review of the agencies (of

    which there have, in fact, been a number in the last decade, including a major performance

    review in 2014).

    We have, nevertheless, tried to develop a clear understanding of what the agencies do, how

    they do it, and what the rationale is for their existence. That has enabled us to develop

    what we hope is a clear and consistent set of recommendations for legislative change.

    Our central conclusion is that there should be a single, integrated and comprehensive Act of Parliament that lays out in plain English how the agencies are constituted; what their

    purposes are; how all their intelligence and security activities are authorised; and how they

    are overseen so as to protect those freedoms and liberties that are part of what we are as a

    nation.

    The Act should state clearly that its fundamental purpose is the protection of New Zealand

    as a free, open and democratic society. That then becomes the guiding principle by which

    the activities of the agencies must be undertaken and judged.

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    There should always be debate about how best to ensure that purpose is achieved.

    Freedom and liberty cannot be preserved either in a vacuum of apathy or in an atmosphere

    of tolerance of the abuse of power. But nor can they be preserved by wilfully or casually

    ignoring the existence of those who reject or threaten the values of freedom and liberty.

    Our report proposes a legislative framework designed to encompass both those enduring

    truths.

    Hon Sir Michael Cullen KNZM Dame Patsy Reddy DNZM

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    Contents

    EXECUTIVE SUMMARY 1 

    Key issues identified 2 

    Our proposals 3 

    Outline of the report 4 

    Summary of key recommendations 5 

    CHAPTER 1: INTRODUCTION 14 

    Collective security and individual rights 14 

    Our review 18 

    Global context 22 

    CHAPTER 2: INTELLIGENCE 31 

    What is intelligence? 31 

    The value of intelligence to decision makers 32 

    Why does some intelligence need to be collected in secret? 33 

    Why do we need special intelligence and security agencies? 33 

    CHAPTER 3: NEW ZEALAND’S INTELLIGENCE SYSTEM 36 

    Setting priorities 36 

    Collection 38 

    Assessment 46 

    Oversight 47 

    Protections for whistle-blowers 51 

    CHAPTER 4: TRANSPARENCY AND ACCOUNTABILITY 52 

    The need for robust oversight 52 

    Improving oversight in New Zealand 54 

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    Single Act 55 

    Integrating the Agencies within the public sector 56 

    Arrangements with foreign partners 58 

    Centralising intelligence assessments 60 

    Better intelligence co-ordination 61 

    Role of the Inspector-General of Intelligence and Security 62 

    Role of the Intelligence and Security Committee 71 

    CHAPTER 5: WHAT SHOULD THE AGENCIES DO? 74 

    Role of the intelligence and security agencies 74 

    What should the Agencies’ objectives be?  82 

    What should the Agencies’ functions be?  83 

    Protecting New Zealanders 88 

    What is national security? 92 

    CHAPTER 6: HOW SHOULD THE AGENCIES OPERATE? 95 

    The Agencies’ current authorisation frameworks  95 

    A comprehensive authorisation regime 99 

    Authorisation in urgent situations 118 

    Cover for operations and employees 122 

    Immunities 125 

    CHAPTER 7: ACCESSING AND USING INFORMATION 130 

    Access to information held by government agencies 131 

    CHAPTER 8: COUNTERING FOREIGN TERRORIST FIGHTERS 137 

    Extended powers to cancel, suspend or refuse to issue travel documents 138 

    Access to Customs information for counter-terrorism purposes 139 

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    NZSIS counter-terrorism powers 140 

    Should the new provisions be extended? 141 

    CONCLUDING REMARKS 146 

    ANNEX A: TERMS OF REFERENCE 148 

    ANNEX B: MEETINGS WITH INDIVIDUALS AND ORGANISATIONS 149 

    ANNEX C: FULL LIST OF RECOMMENDATIONS 152 

    ANNEX D: NEW ZEALAND’S INTELLIGENCE SYSTEM 166 

    ANNEX E: OUTLINE OF PROPOSED SINGLE ACT 167 

    ANNEX F: PROPOSED AUTHORISATION FRAMEWORK 169 

    ANNEX G: GLOSSARY OF TERMS 170 

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    Page | 1 Executive summary

    Executive summary

    1.  We were appointed by the Government as independent reviewers to conduct the first

    statutory review of New Zealand’s intelligence and security agencies, the Government

    Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service

    (NZSIS) (together, the Agencies). Amendments made to the Intelligence and Security

    Committee Act 1996 in 2013 require a review of the Agencies, the legislation governing them

    and their oversight legislation every five to seven years.

    2.  Our terms of reference (which are set out in full in Annex A) directed us to determine:

      whether the legislative frameworks of the Agencies are well placed to protect New

    Zealand’s current and future national security, while protecting individual rights

      whether the current oversight arrangements provide sufficient safeguards at an

    operational, judicial and political level to ensure the Agencies act lawfully and maintain

    public confidence

      whether the legislative provisions arising from the Countering Foreign Terrorist Fighters

    legislation, which expire on 31 March 2017, should be extended or modified, and

      

    whether the definition of “private communication” in the legislation governing the

    GCSB is satisfactory.

    3.  The primary purpose of our report is to set out a basis for comprehensive reform of the

    legislation relating to the Agencies. We also hope it will help to provide some clarity, so far as

    possible, about the purpose of intelligence and security agencies and what they do.

    4.  The need to maintain both security and the rights and liberties of New Zealanders has been at

    the forefront of our minds. Given the intrusive nature of the Agencies’ activities, New

    Zealanders are understandably concerned about whether those activities are justifiable.

    5.  This concern is not helped by the fact that the Agencies’ activities have been kept largely in

    the shadows. To secure public confidence in the modern world, the Agencies need to be able

    to demonstrate their value to New Zealanders. The legislation governing the Agencies also

    needs to include appropriate external and independent checks and balances. Because the

    Agencies cannot always be entirely open about their activities, the public needs to be able to

    count on oversight and accountability mechanisms to ensure they act lawfully and reasonably.

    6.  Another important part of the backdrop to our review is the need to ensure that the

    legislation allows for changes in the nature of threats and advances in technology. We are,

    after all, living in a time when change and uncertainty are ever-present. The Agencies must be able to adapt their activities to continue to meet New Zealand’s needs. 

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    Page | 2 Executive summary

    Key issues identified

    7.  

    It quickly became apparent to us that there were a