Attorney-General gives behind-the- scenes glimpse at NZ’s spy world
Over 140 attendees at ADLS’s inaugural “Breakfast with the Attorney-General” earlier this month were treated by the Hon Chris Finlayson QC to an insight into “the scary world of spies”.
In addition to his Attorney-General “hat”, Mr Finlayson is also the Minister in charge of the New Zealand Security Intelligence Service (NZSIS) and the Government Communications Security Bureau (GCSB).
He describes this oversight role as “one of the most interesting jobs I have”, and, with United States’ intelligence chief James Clapper recently in town and much interest in the media over the recently-completed independent review by Sir Michael Cullen and Dame Patsy Reddy of intelligence and security in New Zealand, the role and scope of New Zealand’s intelligence operations (both domestically and in terms of how we interact internationally) are certainly topical.
As Mr Finlayson acknowledged, our security and intelligence agencies “haven’t exactly covered themselves in glory” in years gone by. In the old “cloak and dagger” days of spying, the agencies “tried to keep from the public as much as they could and disclose only what was strictly necessary”. Indeed, while the SIS came out of the police force some 60 years ago, the GCSB was not even acknowledged to exist until 1997, and there was no legislation governing it until 2003.
However, he stressed the “sea change” in their approach nowadays – “they tell the public as much as possible and only keep confidential what is really necessary”. “Now, people accept we need these agencies, while recognising that, as they have a large amount of power, they do need to be tightly regulated.”
He says that the critical issue is “to have agencies that are well-run but subject to rigorous scrutiny”. As part of this, Mr Finlayson works closely with the Inspector-General of Intelligence and Security and the Commissioner of Security Warrants, and praised both the current incumbents of those roles.
While the Inspector-General used to be a retired judge or general, who would be “brought out as and when to look at a few things”, Cheryl Gwyn now has additional powers to conduct de novo reviews and be more robust about supervision of the agencies. “I have no control over what she does and when she reports, which is a good thing,” Mr Finlayson emphasised.
The Commissioner of Security Warrants is similarly rigorous, with the task of asking questions about proposed warrants and to what conditions they should be made subject before they are signed. “You couldn’t get anything past [former Commissioner] Sir John Jeffries, and [current Commissioner] Sir Bruce Robertson adopts a similar approach,” said Mr Finlayson.
One of the suggestions in the Cullen-Reddy review is that we have one statute to govern the country’s security and intelligence agencies, instead of the current array, which includes the New Zealand Security Intelligence Service Act 1969, the Government Communications Security Bureau Act 2003, the Intelligence and Security Committee Act 1996 and the Inspector- General of Intelligence and Security Act 1996.
Mr Finlayson is likewise in favour of one piece of legislation (“I don’t believe in micro-legislation”), and says that we also need to bear in mind that all of the legislation in question is “hopelessly out of date”. For example, the New Zealand Security Intelligence Service Act of 1969 has not had a thorough overhaul in decades and still has a “keep an eye on the commos” flavour, reminiscent of that time.
Simply amending and re-amending legislation does not accord well with the Attorney-General’s self-confessed “tidy mind complex” – there comes a time, he says, when legislation has been amended so much that the fundamental structure is altered and it needs a total re-write.
He envisages one statute which could contain a fundamental statement of human rights principles, describe the agencies and set out their powers and relationship with each other, and provide for independent scrutiny of them by Parliament and externally.
Interaction between GCSB and NZSIS
Another key question being asked is to what extent the GCSB should be able to target New Zealanders for intelligence-gathering purposes? The critical issue from his perspective is to what extent the GCSB should be able to provide assistance to the SIS. Should section 14 of the Government Communications Security Bureau Act be changed and a new formulation be introduced along the lines suggested in the Cullen-Reddy report?
Of course, says Mr Finlayson, the GCSB and the SIS have learned to cooperate, and it is “acceptable” for them to share some resources and facilities, but he stressed that “one statute” should not mean “one security agency”, and that any blurring of the agencies’ current distinct roles “would concentrate too much power in too few hands”.
Other key questions raised by Mr Finlayson include:
• What degree of parliamentary control should there be over our security and intelligence agencies?
• What degree of supervision should the Intelligence and Security Committee (established in 1996 to oversee and review the NZSIS and the GCSB) have?
• Who should be on the Intelligence and Security Committee – should more parties be involved?
• Are the powers of the Inspector-General of Intelligence and Security adequate?
• Should there be additional Commissioners of Security Warrants, with some serving judges amongst the pool?
These types of questions are of great interest throughout the Commonwealth at the moment, and we are not the only ones trying to strike the right balance.
Mr Finlayson stressed the importance of “not having a rushed legislative process on this issue”, and he looks forward to practitioners throughout the country having their say.
He hopes that the Cullen-Reddy report will be the source of “much discussion” and was quick to point out that the Government “has not drawn any conclusions yet”, and will not do so before first having a “full and frank discussion” with relevant stakeholders.