Annual Intelligence & Security report

The Inspector General of Security and Intelligence annual report (July 2015 – June 2016) annual report has been tabled in Parliament. This is now mandatory public reporting as required by the IGIS Act.


THE YEAR IN REVIEW

The principal work of the office during the reporting period comprised:

continued work on current inquiries and reviews

receipt and investigation of a range of complaints

review of GCSB and NZSIS warrants and authorisations

ongoing assessment of the soundness of compliance systems and practices in the two agencies.

Increased oversight means increased demand on the agencies

One effect of the expanded mandate and corresponding increase in resources for the InspectorGeneral, which is obvious in retrospect, is that an Inspector-General’s office that has the capacity to investigate, review and audit more, to ask more questions, will inevitably place demands and some strain on the agencies which must respond. Some of the compliance issues my office has identified during my first two years in office are longstanding and systemic in nature and, because of the limited oversight in place until the 2013 legislative reforms, had been subject to limited or no scrutiny by the Inspector-General. It has, necessarily, taken the agencies some time to address those issues and to consolidate or develop adequate internal processes and resources to meet the requirements of Inspector-General oversight. The practical effect of that has, sometimes, been delays and complications in gaining access to necessary information.

Measures of effectiveness

In the 2014/15 annual report I noted that the effectiveness of the Inspector-General’s office can be assessed against four key measures:

  • the breadth and depth of inspection and review work
  • the time taken to complete inquiries and resolve complaints
  • the extent to which the agencies, Ministers and complainants accept and act on the Inspector-General’s findings and recommendations
  • the extent to which there is a change to the agencies’ conduct, practices, policies and procedures as a result of the work of the Inspector-General’s office.

I believe that the office is making good progress against these measures. The breadth and depth of inspection and review work is illustrated by the ongoing inquiries and reviews outlined in this report. To date, the agencies have acted on all of the Inspector-General’s findings and recommendations.

The relatively large number of inquiries and reviews instituted by the office in the preceding reporting period has meant some delay in concluding those investigations and finalising reports. I acknowledge that inquiries must be completed within a reasonable period. If the matter is in the public interest, the public needs to know the answer to the questions posed as soon as possible. Likewise, the agency under scrutiny is entitled to have any issues about its performance evaluated and reported on without undue delay. While it is not possible to have a hard and fast rule, my objective is to complete all inquiries and reviews within six to 12 months, depending on the nature and scope.

Statutory advisory panel

The IGIS advisory panel comprises two external members (Christopher Hodson QC and Angela Foulkes, who were appointed in October 2014) and the Inspector-General. The panel has held 13 scheduled meetings (including by secure teleconference when members were away from Wellington) since the external members’ appointment. One or both external panel members have also attended other meetings with the Inspector-General and/or staff, including to review draft reports, discuss proposed legislative amendments and assist in planning the office’s work programme.

Panel members have also undertaken briefings with the intelligence agencies; a visit to the GCSB station at Waihopai; reviews of substantial written material; and ad hoc meetings and discussions with the Inspector-General.

The advisory panel provides valuable support to the Inspector-General, the members bringing a diversity of experience, intellectual rigour and judgement to the role. They have the highestlevel security clearance and can provide an external, but informed, perspective on substantive matters relating to the Inspector-General’s oversight of the agencies. That perspective is particularly important working in a closed, classified environment.

Intelligence and Security Committee

The Intelligence and Security Committee (ISC) may consider and discuss with the InspectorGeneral his or her annual report as presented by the Prime Minister to the House of Representatives.15 The Inspector-General may, with the concurrence of the Prime Minister, report either generally or in respect of any particular matter to the ISC.16 At the ISC’s invitation I attended before it at a private hearing on 10 November 2015 to discuss my 2014/15 annual report.

Independent review of intelligence and security legislation

The Cullen/Reddy review was timely: the NZSIS Act has been in effect for 47 years and the GCSB Act for 13 years. The Intelligence and Security Committee Act 1996 (ISC Act), like the IGIS Act, was enacted 20 years ago.

While all of these pieces of legislation have been subject to some amendment over that time, there has been no previous overarching review of the legislation governing the agencies and the oversight function.

I welcomed the opportunity to meet on a number of occasions with the reviewers. The focus of my discussions was on the need for any new legislation to:

  • set out clearly the powers of the agencies, purpose of those powers and controls on them
  • include proper accountability and oversight mechanisms
  • meet the requirements of legality and propriety and consistency with human rights.

The full annual report.

 

Key on mass collection versus mass surveillance

From John Key’s Monday media conference a sort of differentiation between mass collection of data and mass surveillance.

Question: You’ve said you’ll resign if there’s mass surveillance by the GCSB.

Key: Yep.

Question: Does that promise apply to mass collection of information as well?

Key: No, because in the end I was asked a very specific question, without re-creating history, and that was: are we conducting mass surveillance of New Zealanders?

And the answer is: No. That’s the advice I’ve had from GCSB. It’s not capable of doing that, and legally it’s not allowed to do that.

Question: But you’ve just said no to the question “Does it apply to mass collection?” So mass collection would not trigger, if it was proved there is mass collection, it wouldn’t trigger a resignation under the promise you’ve given?

Key: No.

Question: So the possibility is surely, I don’t know why this can’t be clarified but, the way the GCSB operates, that it hoovers up a whole lot of information and then just drops out the material that relates to New Zealanders.

Key: Well that’s your assessment of it, and look, in the end the law is pretty clear. The law says you can’t collect information about New Zealanders unless there are certain circumstances, and in the event that you collect incidental information about New Zealanders, ah then you know there’s a way of treating that.

And so my view is look, we have the law. We have a purpose of what it’s allowed to do.

And actually you have an Inspector General that’s both had the resources massively increased, and the power significantly increased, and so far in the twelve months that the Inspector General’s been in the job, she hasn’t raised with me concerns.

Ah I’m sure she’ll continue to do her work. Ah she’ll continue to look at these matters. No other previous Inspector General has raised concerns with me.

Um the assurances I’ve had on a repeated basis is as the former Minister I’ve asked them on numerous occasions, especially when the questions were being asked some time ago.

And the absolute assurances I’ve had from the Minister, they do not undertake mass surveillance against New Zealanders.

That’s all I can tell you.

I expect from that the paranoid will remain paranoid – they don’t believe anything what Key says about surveillance anyway – and the apathetic won’t have any idea he said it let alone understand what he said.

From about 13:38:

– source Scoop: NZ PM John Key’s Post Cabinet Press Conference – 9 March 2015

(Note to those who don’t understand New Zild “hoovers” means “vacuums” as in a cyber vacuum cleaner).

Secret services need more oversight

Both the GCSB interviews on The Nation this morning were very good. Sir Bruce Ferguson stayed out of the political mire and made well informed points. Lawyer Mai Chen was also a very good addition to the GCSB debate.

We can’t have a public inquiry of everything about the secret services as Labour wants, that would be ludicrous.

But as Ferguson accepts and Mai Chen strongly advocates, we need much stronger oversight, which means substantially improving the resources of the main means of oversight, the Inspector-General.

The Inspector-General of Intelligence and Security is charged by an Act of Parliament to assist the Minister responsible for a security and intelligence agency (traditionally the Prime Minister) in the oversight and review of that agency. In particular, the Inspector-General ensures that the activities of each agency comply with the law and that any complaints about an agency are independently investigated.

The Inspector-General is appointed by the Governor-General on the recommendation of the Prime Minister following consultation with the Leader of the Opposition.

The current Inspector-General is the Hon Paul Neazor.

http://www.dpmc.govt.nz/dpmc/publications/securingoursafety/overview

Mai Chen said the Inspector-General was a part time position with an annual budget of $130,000 – that needs seriously beefing up.