The Government is being advised to create a new top public sector position for an Intelligence Tsar.

The advice in the The Independent Review of Intelligence and Security published yesterday essentially confirms what was already a process that has begun, of bringing the services together under an official in the Department of Prime Minister and Cabinet.

That role is currently held by the former Police Commissioner Howard Broad whose title is deputy chief executive, Security and Intelligence.

Mr Broad’s staff in the DPMC are responsible for providing and coordinating advice to the Prime Minister on security and intelligence matters and “lead the national intelligence and assessments community.”

But while the co-ordination has begun in the Beehive the two main intelligence agencies have been operating under different species of legislation with what has emerged in recent previous reports as quite different operational standards.

The reviewers; former Deputy Prime Minister, Michael Cullen and Wellington businesswoman, Dame Patsy Reddy are proposing that the three main intelligence agencies, the SIS, the GCSB and the National Assessments Bureau be placed under the one piece of legislation and that the government consider establishing a National Intelligence and Security Adviser (“NISA”) to oversee and co-ordinate them.

“This would facilitate efficiencies in budgetary and operational matters, and a more effective overview of how the wider New Zealand Intelligence Community’s budget is spent,” the report says.

“The NISA could be the principal adviser to the government on matters of intelligence and security. He or she could provide leadership and take a whole-of-government view regarding these matters.

“The NISA could also oversee and direct the implementation of a more flexible budget to ensure the activities of the GCSB, NZSIS, NAB and the wider NZIC are aligned with the government’s national security priorities.

“The government may also wish to consider whether a version of these priorities could be made public. “

The Report also proposes that one piece of legislation be drafted to govern the SIS and the GCSB and possibly the national Assessments Bureau which is currently located within the department of Prime Minister and Cabinet.

And as part of that it proposes that the SIS be brought within the scope of the State Sector Act.

And in the best traditions of spying agencies in fiction, it proposes that the legislation should explicitly provide for the Agencies to obtain, create and use any identification information necessary for the purpose of maintaining the secret nature of their authorised activities.

“This should include the ability to create cover for anyone authorised to undertake activity for the Agencies. “

But the real impact of their proposal is to apply a much greater formalisation than is currently applied, particularly to the SIS, which operates behind its own closed doors.

The review arose out of criticism of the way the GCSB operated as revealed in the report conducted by then Cabinet Secretary Rebecca Kitteridge in 2013. Ms Kitteridge now heads the SIS.

 So the core of the review is a new process for the authorisation of interception and other surveillance warrants.

Currently Intelligence warrants under the NZSIS Act are separated into two categories: “domestic intelligence warrants” and “foreign intelligence warrants”. 

 Foreign intelligence is defined as “intelligence relating to 1 or more foreign organisations or foreign persons”.

A foreign intelligence warrant can only be issued where there are reasonable grounds for believing that:  

  • No New Zealand citizen or permanent resident (New Zealander) is identified as a person who will be subject to the warrant, and
  • Any place specified in the proposed warrant is occupied by a foreign person or organisation. 

“This means a domestic intelligence warrant is required if a New Zealander or a place occupied by a New Zealander is identified as a target,” the report says. 

“Domestic intelligence warrants must be issued jointly by the responsible Minister and the Commissioner of Security Warrants, while foreign intelligence warrants are issued by the Minister alone.” 

The report is proposing a trade-off for the GCSB gaining permission to intercept New Zealanders’ communications and says: “Instead, protections for New Zealanders should be implemented through a strengthened authorisation framework.” 

The new authorisation framework would consist of three levels or tiers.   

  • Tier 1 authorisation: Warrant issued after approval by both the Attorney-General and a judicial commissioner
  • Tier 2 authorisation: Warrant issued by the Attorney-General
  • Tier 3 authorisation: Policy statement issued by the Minister responsible for the Agencies.

“Any activity that would be unlawful but for the authorisation would require approval by the Attorney-General at a minimum.

“Where the Agencies wish to target a New Zealander, a tier 1 authorisation with the additional safeguard of approval by a judicial commissioner would be required.

“This would act as an independent check on the power of the executive branch.

“Tier 3 authorisations would only cover activities that are permitted under the general law, such as collecting information that is publicly available. “

Jim Rolfe, the former Director of the Victoria University Centre for Strategic studies, who has written extensively on security matters in New Zealand and who was consulted by the report authors told POLITIK last night that the report was very comprehensive.

“All the bases seem to be covered and, I think, a proper balance between national security and individual liberty and privacy,” he said.

“The devil will be in the detail, especially in the drafting of unified legislation.

“Yes, there are well recognised gaps in the current legislation, but the danger will be that in the attempt to be comprehensive in single legislation, something is left out.

“I’m sure that everyone will be aware of the potential problem.

“It could be overcome with general common legislation and sections with special applicability to the different agencies.

“Or maybe a clever drafter will manage.

“It doesn’t discuss resources of course, not part of the terms of reference, but that’s a perennial issue that might well be usefully addressed by an independent piece of work.”