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Immunities from legal liabilities

Provisions for employees of NZSIS, GCSB and those assisting them

What the Act does

  • Creates a single immunities framework for both the New Zealand Security Intelligence Service (NZSIS) and Government Communications Security Bureau (GCSB).
  • NZSIS employees gain the exemption from civil liability when acting in good faith that is afforded to all state sector employees under the State Sector Act 1988 (this immunity is already in place for GCSB).
  • Provides an exemption from civil liability or criminal prosecution for anyone assisting NZSIS and/or GCSB (such as in producing official identity documents or in the execution of a warrant).

Why provide immunities?

Employees of NZSIS and GCSB at times must act in ways that would normally breach the law. This is because of the types of operations they undertake and the need to maintain cover.

There needs to be certainty that employees and anyone legitimately assisting them will not be exposed to civil or criminal prosecution as a result of their work. In order for immunity to apply, a person must be acting in good faith and in a reasonable manner, and must reasonably believe the act to be necessary.

Many of the immunities provided by the Act reflect similar immunities that exist for law enforcement officers and other public servants.

What does it mean to ‘act in good faith’?

The term ‘good faith’ is used in many areas of the law. In this context it means that for a person to have the benefit of immunities under the Act they must have been acting honestly and without fraud or deceit – they need to have honestly believed they were acting properly. A person would not be acting in good faith if they did something arbitrarily or for private gain, or knew they were acting outside the law.

What are the immunities and exceptions?

There is criminal immunity for employees of the agencies for acts done in good faith (as long as specified conditions, such as being necessary, are met):

  • in obtaining an intelligence warrant
  • assisting the Police and NZ Defence Force, and
  • in carrying out authorised activity (ie, activities authorised by a warrant).

For use of assumed identities, civil and criminal immunities include acts done in good faith and with reasonable care by:

  • the person who is authorised to have the assumed identity; and
  • a person who assists in the establishment and maintenance of an assumed identity.

The Act provides criminal exceptions for:

  • some minor offences and infringements of the Road User Rules (for the NZSIS only), and
  • offences relating to accepting unsolicited information (unless obtained by torture or another serious abuse of human rights).

The Act applies the immunities consistently to both agencies.  

What are the safeguards against misuse?

  • The person with the assumed identity is not allowed to do something that they are not qualified to do (such as flying a plane without a licence).
  • The employee must establish, on the balance of probabilities, that the immunity applies.

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Provisions for employees of NZSIS, GCSB and those assisting them

Last updated: 
Monday, 15 August 2016

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