GCSB bill – appointments and oversight panel

Concerns have been expressed that the GCSB advisory (oversight) panel, as well as the Inspector General, will be appointed by the Prime Minister, meaning he will have control over all people involved in the warrant issuing and oversight process.

This isn’t supported by the facts.

 

First, the appointment of the Director of the Bureau. From the committee report:

9 Appointment of Director

(1) The Director of the Bureau is appointed by the Governor-General, on the recommendation of the Prime Minister, for a term not exceeding 5 years, and may from time to time be reappointed.

9A Appointment process

The State Services Commissioner—
“(a) is responsible for managing the process for the appointment of the Director; and
“(b) must provide advice on the nominations for Director to the Prime Minister.

9C Removal from office

(1) The Governor-General may at any time for just cause, on the recommendation of the Prime Minister, remove the Director from office

So that process involves the Governor General, the State Services Commissioner and the Prime Minister.

And a recommendation from the Intelligence and Security Committee on the advisory panel:

Establishment of an advisory panel

We recommend amending the bill (inserting new sections 15A, 15B, 15C, and 15D (new clause 33A)) to establish an advisory panel to provide advice to the Inspector-General.

The bill aims to build on and further strengthen the oversight arrangements of New Zealand’s security and intelligence agencies. We believe the establishment of an advisory panel to provide advice to the Inspector-General would contribute significantly to strengthening the oversight arrangements.

The amendments we propose also provide for the advisory panel to report to the Prime Minister on any matter relating to intelligence and security, if the panel considers it necessary to do so.

We recommend in new section 15C that the panel consist of 2 members and the Inspector-General. Members would be appointed by the Governor-General on the recommendation of the Prime Minister after consulting the Intelligence and Security Committee.

The proposed amendment:

15A Advisory panel established

This section establishes an advisory panel.

15B Function of advisory panel

(1) The function of the advisory panel is to provide advice to the Inspector-General.

(2) The advisory panel may provide advice—
(a) on request from the Inspector-General; or
(b) on its own initiative.

(3) To assist the advisory panel to perform its function,—
(a) the advisory panel may ask the Inspector-General to provide information; and
(b) the Inspector-General may provide information to the advisory panel, whether in response to a request under paragraph (a) or on his or her own initiative.
(4) 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.

15C Membership of advisory panel

(1) The advisory panel consists of—
(a) 2 members appointed under subsection (2), 1 of whom must also be appointed as the chairperson of the panel; and
(b) the Inspector-General.

(2) The members and chairperson appointed under this subsection are appointed by the Governor-General on the recommendation of the Prime Minister after consulting the Intelligence and Security Committee.

(3) One of the members appointed under subsection (2) must be a lawyer within the meaning of the Lawyers and Conveyancers Act 2006 who has held a practising certificate as a barrister or barrister and solicitor for not less than 7 years.

(4) Both of the members appointed under subsection (2) must have an appropriate security clearance.

(5) A member appointed under subsection (2)—
(a) holds office for a term not exceeding 5 years; and
(b) may from time to time be reappointed; and
(c) may at any time resign office by notice in writing to the Prime Minister; and
(d) may be removed from office by notice in writing from the Prime Minister for misconduct, inability to perform the functions of office, or neglect of duty.

This addresses two common criticisms.

The Governor General and the Prime Minister are involved in the appointment of the panel, in consultation with the Intelligence and Security Committee. The committee currently comprises John Key, John Banks, David Shearer, Russel Norman and Tony Ryall (who recently replaced Peter Dunne).

This provides cross-party oversight of the appointments. I don’t think an appointment would be made that is strongly objected to by any members of the committee.

And at least one of the two members must be a lawyer. This further reduces the chances of any possibility of cronyism, which is the fear of some.

The advisory panel substantially improves oversight of the processes and practices of the GCSB being used as an agent of the NZSIS, Police and Defence Force.

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