10 March 2016

The long awaited report of the first ever full and independent review of our security services has just come out. But despite the prudent calls last week from the Inspector-General of Intelligence and Security, Judge Cheryl Gwyn, for as much openness and transparency as possible about the review, things did not get off to a good start. Parliament’s Intelligence and Security Committee apparently decided that while journalists could be given embargoed copies of the report several hours before its official release, the same courtesy should be not extended to MPs, as the mere representatives of the public, who had to wait until after the official release to get their copies. To make matters worse, it now appears that this constitutional affront was made at the behest of the review panel itself. Hardly a good or confidence-inspiring look for what is to follow.

The report itself is like the proverbial curate’s egg – good in parts and quite bad in others. Overall, though, as the person whose 2013 amendment in Parliament established the concept of the regular independent review, I am generally pleased with the way it has been conducted, and with its very thorough set of recommendations about improving the processes under which the GCSB and the SIS operate, including the stricter and more transparent arrangements for the issue and review of surveillance warrants.

But I am far less impressed with the implicit trade-off of these tighter rules with the proposed broadening of potential surveillance of individual New Zealanders by the agencies. These wider intrusive powers are both unnecessary and unjustified. While the report deals in some depth with the current international situation, it fails to make a compelling case for more surveillance in New Zealand, other than by tenuous extension.

Unfortunately, the reviewers’ terms of reference set by the Intelligence and Security Committee did not empower them to consider whether the GCSB and the SIS should be merged, although by suggesting they be brought under one statute, and that the full merger question be considered at a future point, they pretty much show their hand.

Given that most of the operational side of surveillance is already carried out by the Police and not the agencies, the GCSB and the SIS today are really no more than information gatherers and processors. Their briefings, in the main, are a combination of website links and analysis of overseas sourced data, so it is hard to see why we need to maintain two separate agencies, employing over 500 personnel, to process data obtained from elsewhere. The time for a rationalisation into one leaner, smaller, more focused agency is surely nigh, as the review team “almost but not quite” clearly recognised.

So what happens next? The Prime Minister has already said he will be seeking a bipartisan approach involving the two big parties and that he would be loath to proceed without the Opposition’s support. That is prudent, but Labour’s initial response seems ambivalent, especially around the prospect of more domestic surveillance. The Prime Minister is unlikely to hand Labour a power of effective veto on changes, so may well take some time to work through the next steps. Labour, too, will want to proceed cautiously, lest it be painted as opposing just for the sake of it. However, time is not in endless supply here. The Foreign Fighters legislation passed in 2014 expires early next year, and new legislation will need to be in place by then. So this will be a space worth watching carefully over the next few months.

Overall, the review scores a B in my book – “shows promise and a good understanding of the issues, but does not quite get there.” Nevertheless, I acknowledge the professionalism and thoroughness of the reviewers, Sir Michael Cullen and Dame Patsy Reddy. As the debate moves on from here, I hope it is conducted in the open and candid way Judge Gwyn advocated, as that is the only way to build credibility.  However, the signs from the way the report was released do not offer much confidence in that regard.