Digest No. 2068
|Date of Introduction:||8 May 2013|
|Statutory Committee:||Intelligence and Security|
|Date report presented:||25 July 2013|
|Published: 26 July 2013by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 817-9626 (Ext. 9626)||Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.|
The aim of the Bill as introduced is to amend the Government Communications Security Bureau Act 2003 (the GCSB Act), the Inspector-General of Intelligence and Security Act 1996 (the IGIS Act), and the Intelligence and Security Committee Act 1996 (the ISC Act).
In relation to the GCSB Act, the Bill makes amendments to the objective, function, powers and limitation provisions “to improve clarity about the legal parameters for GCSB [(Government Communications Security Bureau)] activities; and to accommodate changes in the prevailing security environment” (“particularly in relation to cybersecurity and information security”).
In relation to the IGIS Act, the Bill makes amendments “to strengthen the office of the IGIS [(Inspector-General of Intelligence and Security)], increasing the resources of the office to enable a greater range of activities to be carried out, expanding the IGIS’s statutory work programme, and enhancing the corresponding reporting responsibilities”.
In relation to the Intelligence and Security Committee Act 1996, the Bill makes amendments to “improve the ISC’s [(Intelligence and Security Committee)] ability to provide effective oversight and accountability of the intelligence agencies. 
The Bill as introduced is described in Bills Digest No 2046.
Amendments to GCSB Act
Co-operation with other entities to facilitate their functions
The Bill as introduced described the function of the Bureau in relation to co-operation with certain other entities to facilitate the performance of their functions.
This function of the Bureau is to co-operate with, and provide advice and assistance to, the following for the purpose of facilitating the performance of their functions:
- the New Zealand Police;
- the New Zealand Defence Force;
- the New Zealand Security Intelligence Service; and
- any department (within the meaning of the Public Finance Act 1989) specified for the purposes of the provision by the Governor-General by Order in Council made on the recommendation of the Minister.
The Bill as introduced also provides “to avoid doubt”, that the GCSB “may perform this function … to the extent that the advice and assistance is provided for the purpose of activities that the entities may lawfully undertake … and … subject to any limitations, restrictions, and protections under which those entities perform their functions and exercise their powers … and … even though the advice and assistance might involve the exercise of powers by, or the sharing of the capabilities of, the Bureau that the Bureau is not, or could not be, authorised to exercise or share in the performance of its other functions.”
The bar-2 Bill makes the following amendments to the above provision:
- the reference to any department is changed to: “any department (within the meaning of the Public Finance Act 1989) or part of any department or to a department but only in relation to a specified function or service performed or provided by the department specified for the purposes of this section by the Governor-General by Order in Council made on the recommendation of the Minister”;
- the following is added: “Any [such] advice or assistance provided by the Bureau … to another entity is subject to:
- the jurisdiction of any other body or authority to the same extent as the other entity's actions are subject to the other body's or authority's jurisdiction (for example, the Independent Police Conduct Authority in relation to advice and assistance provided to the New Zealand Police); and
- “the oversight of the Inspector-General of Intelligence and Security under his or her functions in section 11 of the Inspector-General of Intelligence and Security Act 1996 (Part 1, Clause 6, New Section 8C by amending subclause (1)(d) and inserting new subclause (3)).
Principles underpinning performance of Bureau's functions
The bar-2 Bill inserts a new declaratory provision (which “does not impose particular duties on, or give particular powers to, the Bureau, the Director, or any employee of the Bureau”). This provides that “in performing its functions under the [Bill], the Bureau acts:
- in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment;
- in the discharge of its operational functions, independently and impartially;
- with integrity and professionalism;
- in a manner that facilitates effective democratic oversight.
The Bill also provides that “the Director must take all reasonable steps to ensure that:
- the activities of the Bureau are limited to those that are relevant to the discharge of its functions;
- the Bureau is kept free from any influence or consideration that is not relevant to its functions;
- the Bureau does not take any action for the purpose of furthering or harming the interests of any political party in New Zealand.”
The Director must consult regularly with the Leader of the Opposition for the purpose of keeping him or her informed about matters relating to the Bureau's functions under Clause 8A (“Information assurance and cybersecurity”), Clause 8B (“Intelligence gathering and analysis”) and Clause 8C (“Co-operation with other entities to facilitate their functions”) (Part 1, amending Clause 6 by inserting New Section 8CA).
The Bill as introduced provides for the Director, for the purpose of performing the Bureau’s functions under New Section 8A or 8B, to apply to the Minister for an interception warrant to intercept communications or an access authorisation to access information infrastructures and sets out the matters that the Minister must be satisfied about before issuing a warrant or an authorisation.
The Bill as introduced also requires the Commissioner of Security Warrants (appointed under the New Zealand Security Intelligence Service Act 1969) to be involved if anything that may be done under a warrant or an authorisation issued under this provision is for the purpose of intercepting the private communications of a New Zealand citizen or permanent resident of New Zealand under those new sections to the extent that intercepting the person’s private communications under that section is not precluded by New Section 14 (“Interceptions not to target New Zealand citizens or permanent residents for intelligence-gathering purposes”).
The Bill as introduced also provides that in the case of interceptions without an interception warrant or an access authorisation the interception of private communications of New Zealand citizens or permanent residents is not authorised.
The bar-2 Bill inserts four new sections into the Act providing in relation to interception warrants, as follows:
- “no interception warrant or access authorisation is to be issued under [New Section] 15A, and no powers are to be exercised under an interception warrant or access authorisation issued under [New Section] 15A, for the purpose of intercepting the privileged communications [(“privileged communications means communications that are privileged in proceedings in a court of law under section 54, 56, 58, or 59 of the Evidence Act 2006”)] of New Zealand citizens or permanent residents of New Zealand” (Part 1, Clause 14, inserting New Section 15C);
- “every interception warrant and access authorisation must specify the following information:
- the date of issue (New Section 15D(a));
- the person, persons, or classes of persons authorised to make the interception or obtain the access (New Section 15D(b));
- the period for which the warrant or authorisation is issued, being a period not exceeding 12 months (New Section 15D(c))
- the function or functions of the Bureau to which the warrant or authorisation relates (New Section 15D(d));
- any person, persons, or classes of persons whose communications may be intercepted under the warrant or authorisation (New Section 15D(e));
- any place, places, or classes of places that the warrant or authorisation applies to (New Section 15D(f));
- the information infrastructure, information infrastructures, or classes of information infrastructures that the warrant or authorisation applies to (New Section 15D(g));
- any conditions under which interception may be made or access may be obtained (New Section 15D(h)) (Part 1, Clause 14, inserting New Section 15D);
- “a warrant or an authorisation may request 1 or more persons or classes of persons to give any assistance that is reasonably necessary to give effect to the warrant or authorisation”. Where they “are employees (the employees), the warrant or authorisation must also request the persons who are the employers of the employees, or any other persons in any way in control of the employees, to make the services of the employees available to the Bureau.” “On an application made in writing by the Director, the Minister may amend a warrant or authorisation:
- by substituting a person, persons, or classes of persons for the person, persons, or classes of persons specified in the warrant or authorisation under [New Section 15D(e)];
- by substituting another person, other persons, or other classes of persons for a person, persons, or classes of persons[so] requested … ;
- by adding any person, persons, or classes of persons [so] requested … (Part 1, Clause 14, inserting New Section 15E);
- “the expiry of an interception warrant or of an authorisation does not prevent a further application for an interception warrant or an authorisation in respect of the same subject matter” (Part 1, amending Clause 14 by inserting New Section 15F).
Amendments to IGIS Act
The bar-2 Bill provides for the establishment of the advisory panel which is to consist of two members appointed by the Governor-general on the recommendation of the Prime Minister after consulting the Intelligence and Security Committee (one of them must also be appointed as the chairperson of the panel) and the Inspector-General.
The function of the advisory panel is to provide advice to the Inspector-General on his or her request or on its own initiative. To assist the advisory panel to perform its function, the advisory panel may ask the Inspector-General to provide information and the Inspector-General may provide such information to the advisory panel. The advisory panel may make a report to the Prime Minister on any matter relating to intelligence and security, if the advisory panel considers that the matter should be drawn to the attention of the Prime Minister (Part 2, amending Clause 33 by inserting New Sections 15B-15E).
|Copyright: © NZ Parliamentary Library, 2013|
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- Government Communications Security Bureau and Related Legislation Amendment Bill, 2013 No 109 -1, Explanatory note, General policy statement, pp. 1-2. [back]