New Spy Bill Introduced – Privacy v National Security

New Spy Bill Introduced – Privacy v National Security

The world of espionage, secret intelligence, working undercover, spies, secret agents… sounds like the makings of the latest, greatest James Bond film.  In reality, this is the focus of the Government’s agenda with the release of the Intelligence and Security Bill (158-1) on 15th August 2016.  After an independent review of the laws covering New Zealand’s spy agencies (The Report of the First Review of Intelligence and Security in New Zealand: Intelligence and Security in a Free Society), the Government is introducing sweeping reform to New Zealand’s spy laws.

Key aspects of the proposed legislation include that it:

  • Creates a single Act that covers both of New Zealand’s intelligence and security agencies (the Security Intelligence Service (SIS) and the Government Communications Security Bureau (GCSB)). The agencies are currently covered by four separate Acts;
  • Introduces a warrant system that includes “triple lock” protection for any New Zealander under surveillance (i.e. approval of both the Attorney-General and a Commissioner of Intelligence Warrants, subject to review by the Inspector-General of Intelligence and Security);
  • Enables more effective cooperation between the SIS and GCSB;
  • Improves oversight of the SIS and GCSB through a strengthening of the role of the Inspector-General and expanded parliamentary oversight;
  • Brings the SIS and GCSB into the core public service, increasing accountability and transparency.


What are the implications?

The immediately controversial issue with this Bill is the empowering of the GCSB to intercept private communications of New Zealanders (albeit with safeguards). However, on the other side of the coin we see currently unfettered powers becoming more limited.  The Bill allows the two agencies to access restricted personal information, for example the insertion of s 81(4)(sa) in the Tax Administration Act 1994 enabling an Inland Revenue officer to communicate information to the Director-General of an intelligence and security agency if required to do so under cl 117 of the Bill (Access to restricted information must be provided if permitted).  However, this information sharing between agencies is currently relatively unfettered with banks and government departments giving personal information at request under an exemption to the Privacy Act.  Under the proposed legislation, if personal information was requested by one of the agencies (for example personal tax information), Ministerial approval would be required and the agencies would have to abide by the principles of the Privacy Act.


How will this legislation benefit us?

Recent times have seen a new disturbing reality of “global terrorism”.  Alongside this, the technological revolution of the past decade has introduced with it “cyber terrorism”.  With each and every terrorist act played out before us on our screens, the need for “protection” is reinforced until perhaps we willingly hand over the rights to personal privacy in order to have the peace of mind that our Government can, and is, defending us.  In order to prevent the potential terrorist acts before they happen, we have to empower agencies with access to information.  The constant dilemma is, at what cost?  How much privacy are we willing to give up in the interests of “national security”?  What individual price are we willing to pay?  And ultimately, where is the acceptable balance?

Hon Sir Michael Cullen has stated that the focus of spying power is intended to target terrorism and serious criminal activity “rather than ordinary Kiwis”.  The issue is finding the reasonable balance between “national security” (which has only been broadly defined under the proposed legislation) and our individual right to privacy.  How much privacy are we content to give up for the sake of the greater good?

Security specialist Paul Buchannan, claims that Government and key New Zealand companies are subject to 40 cyber probes every day (National Radio, 23 August 2016).  That gives us concerns for every business as foreign and locally driven security breaches continue to arise.  Not all, or even most will be terrorism based, and commercial breaches are more likely to damage any single business and New Zealand overall.


The major implication of this Bill is the empowering of the GCSB to access private communications of New Zealanders for the purpose of “protecting national security”, with the definition of “national security” still being so broadly defined.  The Green Party has described the proposals as “one of the most significant erosions in New Zealanders’ privacy that we’ve seen in modern times”.  Whilst there are limitations to how information is accessed, the reality is, not only is this proposed legislation making New Zealand’s spy agencies more collaborative and cooperative, it is also enabling significant access to private communication.  While Prime Minister John Key assures us that at the heart of Bill is the protection of New Zealanders, we really should be wary of what sort of beast we unleash.

With our All Blacks being recently bugged, and now our Prime Minister claiming he has regularly been bugged, one wonders if there are any secrets left.


Posted: Tuesday 23 August 2016