First IGIS review of intelligence warrants under ISA

The Inspector-General of Intelligence and Security, Cheryl Gwyn, has today published a report on the first nine months of intelligence warrants issued to the New Zealand Security Intelligence Service and the Government Communications Security Bureau under the new Intelligence and Security Act 2017 (ISA). The report sets out the Inspector-General’s interpretation of the new warrant provisions under the ISA and her expectations of the GCSB and NZSIS when they prepare warrant applications. “My job is to identify what the legal standards mean in practice for the agencies, and ensure they act lawfully.”

Cheryl Gwyn says, “If the agencies wish to carry out any activities that would be unlawful in normal circumstances, for example, interception of private communications, they need to get a warrant. One of Parliament’s key objectives when it enacted the ISA was to ensure that the agencies’ powers would be clear in the new law.

“The ISA was also intended to achieve greater transparency by requiring applications for intelligence warrants to include more details of the activities the agencies proposed to undertake under the warrant. These details also help my independent oversight, making the limits of the permitted activities clearer.”

The Minister introducing the Bill, Hon Christopher Finlayson, stressed at the time the “high bar” it set, so that warrants are both proportionate and necessary. “It is against those standards that I carry out a review of every intelligence warrant issued to the agencies,” says Ms Gwyn.

“The report discusses issues about interpretation and compliance that have arisen in the first nine months of warrants issued under the new Act. Intelligence oversight bodies such as my office have a role in explaining the law under which intelligence agencies operate, to enhance public understanding of their role” Ms Gwyn says.

“My focus in reviewing warrants is on what the agency has said, or ought to have said, to the Minister and Commissioners of Intelligence Warrants, who are responsible for issuing warrants. My staff and I review applications to see whether there is a clear case made for what the agency intends to do if it is granted the intrusive powers it seeks, and why that is justified. I need to understand whose rights will be affected, at what cost, and for what benefit.

“The case must be clear for why the activity is both necessary and proportionate in all the circumstances,” Ms Gwyn says.

Ms Gwyn said she was disappointed that the agencies declined to discuss with her the new legislation and what it requires when seeking warrants before the ISA took effect in September 2017.

“There can be a period of uncertainty with any new legislation and understanding how the law applies can develop over time. However, the lack of early engagement from the agencies on these issues, and subsequently the time taken to identify and resolve some of the important interpretation points is unsatisfactory, particularly given Parliament’s intention that the new law would bring greater clarity to the agencies’ powers,” says Ms Gwyn.

Some of the interpretation issues, such as the requirement for the agencies to provide details of their proposed activities under the warrant in the application that goes to the Minister and the Commissioners, have been resolved and agency practice changed accordingly.

“Other matters, particularly those affecting the GCSB, are more complex, and some have not yet been resolved. One important issue of interpretation concerns when and how the new Act allows for the collection of New Zealanders’ communications.”

The Inspector-General noted that she will be closely monitoring agency interpretation and practice.

The Inspector-General’s role is to ensure that the NZSIS and the GCSB, New Zealand’s two dedicated intelligence and security agencies, act lawfully and properly.

The report is available at http://www.igis.govt.nz/publications/IGIS Reports