A democracy always needs to carefully balance the right of citizens to go about their business undisturbed, and the right of the State to protect national interests.
The NZSIS cannot reveal as much about its activities as other government departments because effectively protecting national security requires a certain level of secrecy. Special arrangements ensure that there are independent authorities able to check, on behalf of the public, that the Service operates properly and lawfully.
The arrangements involve:
- the Intelligence and Security Committee,
- the Inspector-General of Intelligence and Security, and
- the Commissioner of Security Warrants.
This Committee was established by the Intelligence and Security Committee Act 1996 to increase the level of oversight and review of:
- the New Zealand Security Intelligence Service, and
- the Government Communications Security Bureau.
The Act requires that this committee has a membership of five, including the Prime Minister and the Leader of the Opposition. Two of the remaining three members are nominated by the Prime Minister, and one by the Leader of the Opposition.
The Intelligence and Security Committee’s functions
The Committee's functions, in relation to the New Zealand Security Intelligence Service, are to:
- examine the Service's policy, administration and expenditure
- consider any bill, petition or other matters about the Service referred to it by the House of Representatives
- receive and consider the Service's Annual Report, and
- consider other matters with security or intelligence implications referred to it by the Prime Minister.
Requests by the Intelligence and Security Committee for information
If the Committee requires documents and information, the Director of Security must make these available unless there are compelling reasons for withholding them, for example, if the information sought is sensitive and if disclosure is likely to:
- prejudice New Zealand's security, defence or international relations
- prejudice the entrusting of confidential information to New Zealand by other governments or international organisations
- prejudice the maintenance of the law, inluding prevention, investigation and detection of offences and the right to a fair trial, and/or
- endanger the safety of any person.
Even when information meets the criteria for being withheld, the Prime Minister has the authority to decide that disclosure would be in the public interest and can direct that the information be provided.
For any disclosure where the information was originally passed to New Zealand by another government, that government's consent must first be obtained.
The position of the Inspector-General of Intelligence and Security was established by the Inspector-General of Intelligence and Security Act 1996.
The Inspector-General is authorised to see any material held by the Service, including sensitive operational information, and has a right of access to Service staff, premises and records in order to fulfil these oversight and review functions.
The present Inspector-General is Cheryl Gwyn.
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 Reports section of the Inspector-General’s website (www.igis.govt.nz).
The Inspector-General's role
The Inspector-General's role includes enquiring into:
- any matter relating to the Service's compliance with its legal obligations
- the propriety of its actions, and
- complaints about the Service.
The Inspector-General is specifically charged with reviewing the manner in which interception warrants are sought and acted upon by the Service, to ensure that all actions relating to warrants are proper and comply fully with the letter and spirit of the law.
The Inspector-General reports annually to the Prime Minister. A copy of the report is given also to the Leader of the Opposition. An unclassified version is tabled by the Prime Minister in Parliament.
For more details of the Inspector-General’s functions, see the Inspector-General of Intelligence and Security Act 1996.
The Commissioner of Security Warrants is involved in issuing interception warrants relating to persons who are either New Zealand residents or citizens. These warrants are issued jointly by the Commissioner and the Prime Minister.
The Commissioner can also direct the Service not to proceed with (or discontinue) interception or seizures of communications.
The Commissioner is appointed by the Governor-General and must have previously been a High Court Judge. The appointment runs for a term of three years and may be extended. The Commissioner of Security Warrants is currently Sir Bruce Robertson.