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Security and Intelligence Services - Needs and Safeguards
by The Rt Hon Sir Geoffrey Palmer
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| Sir Geoffrey Palmer |
The word "intelligence" is used at least six different ways in the English language. One of its meanings concerns knowledge or information, especially secret information of a military or political value.1 For many centuries nations have maintained security and intelligence services to provide them with such information to serve their national interest.
The activities of intelligence gatherers have received much attention from the writers of fiction. There is Rudyard Kipling's portrayal of it in Kim. Somerset Maugham's famous Ashenden stories concentrate upon intelligence gathering, and the modern master is John Le Carrē·ho penned the famous observation: "Intelligence is nothing if not an institutionalised black market in perishable commodities".2
In essence intelligence is secret information about an actual or potential enemy of the nation. An intelligence agency is an office that gathers such information.
New Zealand has had security and intelligence agencies for many years. The New Zealand Security Intelligence Service (SIS) was established in 1956.3 Before that, national security issues were handled by the Police. In 1969 the SIS was given a legislative base - the New Zealand Security Intelligence Service Act 1969. The Act says that the role of the SIS includes the protection of New Zealanders from threats of espionage, terrorism, sabotage and subversion.4
Along with the SIS, New Zealand also has the Government Communications Security Bureau (GCSB), the External Assessments Bureau (EAB), and the Directorate of Defence Intelligence and Security (DDIS).
The existence of these agencies is often severely criticised by New Zealanders, particularly on account of their secrecy. While there has been a more open attitude to the need for security and intelligence agencies in recent years, many feel that the agencies should be more open to public scrutiny than they are.
There is a contradiction here. The more that is known about the activities of the agencies, the less effective they are likely to be. Secrecy, particularly of the intelligence itself, is critical. Thus, the principles of open government and transparency that apply to so much of the New Zealand government today cannot, without qualification, apply to the security and intelligence agencies.
When he was the Australian Attorney-General, Gareth Evans argued that the concepts of national security and civil liberties, far from being antagonistic to one another, were interdependent. He said:5
... the essence of liberty in its traditional Millsian sense is freedom from interference: the freedom to do what you choose, to think and say what you like, without obstruction or interference by others, constrained only by whatever is necessary to ensure an equal freedom for others.
To a very significant extent, "national security" means just this - freedom from interference; freedom from terrorist attack, freedom from deliberately incited racial violence, freedom from espionage which itself threatens basic freedom such as privacy, freedom from the kind of genuinely subversive activity which is aimed - not just in theory but in fact - at destabilising or overthrowing the very democratic system upon which the exercise of civil liberties depends.
The purpose of this chapter is to provide some practical and constitutional grounding for the existence of these agencies in New Zealand and the accountabilities to which they are subject. Dissent in a democracy is healthy. But there are values of importance to the integrity of New Zealand that are protected by the security and intelligence agencies. And I want to state what that case is.
Some practical examples
Far from being a fascinating world of intrigue, much intelligence consists of the painstaking assembly of known facts and interpreting a pattern from them. Intelligence analysis is a skilled activity. Perhaps the easiest way to illustrate the importance of intelligence to policy making within the New Zealand government is to give some examples.
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| New Zealand needs up-to-date and comprehensive intelligence to protect its fisheries. |
In 1989 and 1990 as Prime Minister and Minister for the Environment, I launched a campaign against driftnet fishing. In those years, New Zealand devoted substantial diplomatic and political resource to stopping this practice. Driftnetting was a large-scale form of net fishing used by commercial fishers. Huge nets were strung out for many kilometres in a wall and left to drift across the open ocean. It was called the "wall of death". It killed most living things that crossed its path. A single boat could have up to 64 kilometres of net going down to a depth of 15 metres. Japan, Taiwan and the Republic of Korea all had large driftnet fleets working in the Pacific. Albacore tuna was the main commercial target in the South Pacific driftnet fishery. This is a species that was at risk of becoming depleted.
New Zealand spoke out against the practice at the United Nations and established an initiative through the Pacific Forum to negotiate a regional convention banning driftnetting in the South Pacific.
This was not an easy campaign because albacore tuna are valuable. They could, at that time, fetch US$1,000 per tonne in the United States. Short-term gain was very attractive for the driftnet fishers.
A conference was held in Wellington in November 1989 that resulted in the successful completion of an international convention among all the 22 participating South Pacific countries and territories to ban driftnets in the South Pacific.6 In December 1989 a United Nations resolution was also passed against the practice.7
In the campaign against driftnet fishing some of the nations whose fishing fleets were operating in the South Pacific were prone to deny the problem was serious, or at least as serious as New Zealand argued. But the king hit for New Zealand was specific and detailed intelligence provided by GCSB concerning the activities of those fishing boats, which disclosed the extent of their catches. That meant the New Zealand Government had correct facts upon which to base its campaign. The facts could not credibly be denied.
The campaign was successful. The Wellington Convention entered into force on 17 May 1991. Its effect was to prohibit driftnet fishing on the high seas and in the Exclusive Economic Zones of countries lying within a large area of the Pacific defined by the convention. The important gains of this treaty were greatly assisted by sound intelligence. And that is just one example.
Another example is tied together with one of the worst experiences I had as Prime Minister and Minister in Charge of the SIS. I was given a briefing that left me in no doubt that it would be wrong to assume New Zealand was free from foreign threats. The experience changed my view that New Zealand may be too small and unimportant to be of great interest to hostile foreign-intelligence organisations.
In 1989 I was informed of a series of attempts by a foreign government to interfere quite inappropriately in New Zealand's internal affairs. The SIS monitored these actions. The actions were clearly instigated and directed from abroad.
In the result, I had to take a difficult decision resulting in two foreign officials being declared persona non grata and barred from New Zealand.
No publicity was given to the case at the time. Our objective was not to score points in any international political power game. It was to protect New Zealand's interests against improper activity by a foreign government.
The Asia Pacific Economic Cooperation (APEC) conference is another good example of the sort of work the SIS undertakes. In September 1999, New Zealand hosted the APEC Conference in Auckland. It was the biggest gathering of world leaders New Zealand has ever seen. It made Auckland a potential target for international terrorism. Those world leaders would not come here unless there were adequate protections against terrorism in place.
There are individuals and groups in New Zealand with links to overseas organisations that are committed to acts of terrorism, violence and intimidation. Some of these organisations have developed local structures that are dedicated to support their overseas parent bodies. There are also isolated extremists in New Zealand who advocate using violence to impress on others their own political, ethnic or religious viewpoints.
Security and intelligence organisations of friendly countries around the world provided valuable external intelligence to the SIS. At home, SIS officers spent at least six months interviewing the leaders of immigrant communities in New Zealand whose home country, or a country out of favour with that country, could be the target of attack during APEC meetings. More than 300 interviews were held. The aim of the interview programme was to stay on top of the situation. Various communities helped the SIS in this task.
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| The SIS prepared a risk analysis covering the threat for each of the countries attending APEC. |
The SIS then prepared a risk analysis covering the threat for each of the countries attending the APEC conference. It also provided intelligence support to the Police who had the job of providing security for all attendees at the conference.
There are many other examples that could be used, but I hope enough has been said to illustrate the real value that the security and intelligence agencies play in improving the decision-making of the New Zealand Government and protecting New Zealand's vital interests as a nation.
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| Good intelligence helps governments make decisions about sending New Zealand forces overseas. |
Very little has been said here about defence security and intelligence because that is a highly specialised area relating to the deployment of New Zealand forces. The New Zealand Government needs good intelligence to help it make the decision to deploy New Zealand forces in the first place. In particular, it needs sound advice on the risks that New Zealanders will face when serving overseas. Once the forces have been sent abroad, commanders at all levels need to have good information about the threats, the geography, the people, the climate, the conditions they are likely to meet, as well as a range of other matters.
Checks and balances - safeguarding rights and privacy
It is one thing to convince people that security and intelligence agencies are necessary for New Zealand. It is another to demonstrate that they are sufficiently accountable in both legal and political terms to be compatible with New Zealand's democratic traditions.
Perhaps it would be useful to look at the arguments that are often made against security and intelligence agencies. First, it is asserted they can become agents of the government in promoting its political purposes. They can, it is said, conduct surveillance operations against innocent citizens who have done nothing wrong and this is an abuse of power. Legitimate protest is not an appropriate target for the intelligence agencies.
Secondly, it is said that security and intelligence agencies can become independent power centres of their own, deciding their own priorities and the targets of their operations. It is a subset of this argument that the ordinary mechanisms of political and Parliamentary accountability do not work effectively for security and intelligence agencies because of their necessarily secretive character.
It is also often said that the agencies are instruments of oppression, even where responsible Ministers have directed their tasks. Another argument is that they are incompetent and politically biased against certain groups or certain political ideologies. And it is argued that security and intelligence communities develop close relationships with their counterparts in other countries and may serve the interests of those other countries sometimes to the detriment of the country that nourishes them.
The rule of law
The first point that needs to be made in the New Zealand context is that the security and intelligence agencies are answerable to the law. New Zealand is a nation that is committed to the rule of law. The security and intelligence agencies are under the law, not above it.
This has been dramatically illustrated in recent times by a decision of the New Zealand Court of Appeal in Choudry v Attorney-General.8 On 13 July 1997 a friend of Aziz Choudry stumbled upon two officers of the SIS who had broken into Mr Choudry's residence. Mr Choudry sued the Attorney-General in tort for trespass in respect of the SIS Director, the two officers concerned and the Crown. He also made arguments based on a breach of the New Zealand Bill of Rights Act 1990 that provides: "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise".
The defence claimed that the SIS had a validly executed interception warrant issued by the Prime Minister under the authority of section 4A of the New Zealand Security Intelligence Service Act 1969. That provision authorised the Minister to "issue an interception warrant authorising the interception or seizure of any communication not otherwise lawfully obtainable by the person making the interception or seizure ...".
The Court of Appeal, analysing the statutory grant of power to the SIS, said:9 There is nothing in the carefully-focused statutory language and scheme to justify going behind that narrow grant of invasive powers. In particular, there is nothing in the statutory language and scheme to support the implication that the legislature intended that an interception warrant could authorise entering onto private property without the consent of the owner or occupier.
The President of the Court of Appeal made it plain that important constitutional values were at stake. At common law every invasion of private property is a trespass and any intended erosion of the protection of the common law should be spelled out by the legislature in the plainest possible terms.10 Thus the search that had occurred was unlawful.
Mr Choudry settled his case for damages with the Crown.
The Prime Minister claimed public-interest immunity for the SIS in respect of a wide range of listed documents that should not be made available to the Court or the plaintiff. The Court ruled that the certificate signed by the Prime Minister was so general that it was impossible to be certain which aspect of public-interest immunity for security was involved in the claim in respect of each document. In due course the Prime Minister had to file a fresh affidavit giving further particulars. The Court then upheld the public-interest immunity claimed.
The case illustrates, in the words of Justice Thomas, that the Courts are no longer "awe struck by the mantra of national security".11 But what this case illustrates more than anything else is the rigorous accountability that the Courts will impose on the legality of the activities of security and intelligence agencies in New Zealand. This is a considerable protection for citizens. People need to appreciate that the agencies are not a law unto themselves.
But it is not only the Courts that provide protections to citizens against possible misuse of power by the security and intelligence agencies in New Zealand. In recent years the legislative protections added by Parliament have been substantial indeed. The statutory arrangements were overhauled in 1996 and amended again in 1999.
Legislative controls
The Security Intelligence Service Amendment No.2 Act (1999)
The Act is very clear about the lawful functions of the SIS, the way in which the SIS is to exercise these functions, and the way in which it is to account to Parliament.
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| Legislation is very clear about the way in which the SIS must account to Parliament. |
The Act makes it abundantly clear that the SIS must be politically neutral in the discharge of its functions. Specifically, it must not take any action for the purpose of furthering or harming the interests of any political party.
Under the law, the director of the SIS is obliged to consult regularly with the Leader of the Opposition for the purpose of keeping him or her informed about matters relating to security.
The most important power in the Act is around the issue of an interception warrant. The Minister in charge of the SIS12 and a Commissioner for Security Warrants, who must have previously held office as a High Court Judge, may jointly issue a domestic interception warrant authorising a person to intercept or seize any communication, document or thing not otherwise lawfully obtainable by the person, if the Minister and the Commissioner are both satisfied on evidence on oath given by the applicant for the warrant that the conditions specified by the Act have been met.
The office of Commissioner of Security Warrants is new. It recognises that the Prime Minister alone should no longer exercise the great power of issuing an interception warrant directed against New Zealand citizens or permanent residents. The creation of this office has been a substantial check on the power of the Executive.
The statute governing the SIS is highly specific. The powers that it grants are carefully and tightly defined. There are considerable checks and balances built into the legislation.
But that is not where the checks and balances end. There are two other significant pieces of legislation that act as a considerable constitutional check on the activities of the New Zealand security and intelligence agencies. These are the Inspector-General of Intelligence and Security Act 1996 and the Intelligence and Security Committee Act 1996.
The Inspector-General of Intelligence and Security Act 1996
This legislation establishes the office of the Inspector-General of Intelligence and Security. The Inspector-General, who must have previously held office as a High Court Judge, assists the Prime Minister in the oversight and review of the SIS and the Government Communications Security Bureau (GCSB). The Inspector-General also makes sure that each organisation's activities were lawful and that any complaints about either of them are independently investigated.
The Inspector-General is a public watchdog of considerable authority, power and prestige. If the intelligence and security agencies were to indulge in activities outside their lawful powers, the Inspector-General is in a position to blow the whistle.
The Intelligence and Security Committee Act 1996
The level of political accountability has been greatly enhanced by the passage of the Intelligence and Security Committee Act 1996. That Act increases the level of oversight and review of the intelligence and security agencies by establishing a body of politicians that functions in a manner similar to a Select Committee of Parliament. The committee is made up of the Prime Minister, the Leader of the Opposition, two Members of Parliament nominated by the Prime Minister and one Member of Parliament nominated by the Leader of the Opposition. The committee's membership must be endorsed by Parliament.
Its job is to examine the policies, administration and expenditure of the SIS and GCSB, to consider Bills, petitions and other matters relating to the agencies, to receive their annual reports, and to consider matters referred to it by the Prime Minister. It also reports on its own activities to Parliament.
The normal accountability procedures that are exercised over these two agencies, including their expenditure and their policies, can also be examined by this committee of Parliamentarians. The chief executive of an intelligence and security agency must appear before the committee when requested to do so.
In reporting to Parliament, the committee has to have regard to the requirements of security, particularly the need to preserve the agencies' abilities to function effectively. Despite the necessary restrictions on the level of operational information available to the committee, these measures mean that New Zealand's intelligence and security agencies have a very real degree of accountability to Parliament.
Legislation and the Government Communications Security Bureau (GCSB)
While the GCSB is subject to both the Intelligence and Security Committee Act 1996 and the Inspector-General of Intelligence and Security Act 1996, specific legislation governing the activities of the GCSB has been recently introduced into Parliament. Up until now, the GCSB's activities have been determined by executive instructions from the Prime Minister. This legislative development recognises, however, the need to give greater weight to accountability and the protection of the rights and privacy of New Zealand citizens. Like the Security Intelligence Service Act, the legislation will prescribe the functions of the GCSB, how it operates, and how it reports to Parliament.
Other intelligence offices and officials
Coordination of the activities of the various security and intelligence agencies in New Zealand is undertaken by the Intelligence Coordinator who is an officer of the Department of the Prime Minister and Cabinet. The Director of the Domestic and External Security Secretariat is also an officer of that Department. They provide assistance to the Prime Minister who is, traditionally, the Minister in charge of the two principal security agencies, the SIS and the GCSB.
The External Assessments Bureau (EAB), which is part of the Department of the Prime Minister and Cabinet, produces analyses of situations that exist in countries of importance to New Zealand's foreign relations. It also provides briefings on visiting politicians to our Ministers and background information on developments in various countries that the government should be briefed on.
The group of senior officials who coordinate the intelligence activities of the government is now itself recognised by statute. This group is known as the Officials Committee for Domestic and External Security Coordination.
When there are emergencies - for example, a coup in Fiji - the officials committee and its watch groups will be on continual watch providing immediate advice and intelligence to Ministers dealing with the political aspects of such a crisis. Steps have to be taken to plan for the safety of New Zealand citizens whose lives may be endangered in countries where disruptions occur. It may be necessary to make arrangements for their evacuation. All manner of developments occur that require rapid response and accurate information. The intelligence agencies play an important role in this "watch group" process.
Conclusion
My view is simple. The reasons for having intelligence and security agencies to protect our country's interests at home and abroad are overwhelming. Likewise, a robust legislative framework makes sure these agencies operate within the law and do not infringe the rights and privacy of law-abiding New Zealand citizens.
The effect of the more recent statutory reforms has been, and in the case of GCSB will be, to make the operation of New Zealand's intelligence agencies more transparent. Adherence to the rule of law has been tightened. Parliamentary oversight has been greatly strengthened. The control of expenditure by these agencies is now better scrutinised. There is an avenue for complaint by persons who feel aggrieved at their activities. There is independent impartial oversight provided by one high officer of State. And accompanying these legal and constitutional changes has come an approach of greater openness towards intelligence and security matters, while not compromising the operational security that enables the agencies to function effectively.
The intelligence community works quietly, but it is highly effective in my experience. It is necessary. The protections against misuse of powers are substantial. The experience of history is that small democracies are vulnerable. There are examples that are close enough to New Zealand for the point to be easily understood. Part of the necessary protections for the integrity of democratic government are the intelligence agencies themselves. New Zealand is fortunate to have them. They are mature. And they are carefully regulated and controlled in the public interest.