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Government Communications Security Bureau and Related Legislation Amendment Bill (Consistent) (Sections 14, 19(1), 21) [2013] NZBORARp 6 (6 March 2013)

Last Updated: 1 April 2019

Government Communications Security Bureau and Related Legislation Amendment

Government Communications Security Bureau and Related Legislation Amendment Bill PCO 17322/9.0: Consistency with the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/188

6 MARCH 2013


  1. We have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990. We conclude that while the Bill raises questions in respect of the rights to freedom of expression, non-discrimination and against unreasonable search and seizure affirmed by ss 14, 19(1) and 21 of the Bill of Rights Act, the Bill appears consistent with that Act.
  2. In summary:
2.1 The Bill amends the Government Communications Security Bureau Act 2003 (GCSB Act), the Inspector-General of Intelligence and Security Act 1996 (IGIS Act) and the Intelligence and Security Committee Act 1996 as follows:

2.1.1 The Bill amends the GCSB Act by introducing separate and express provision for the Government Communications Security Bureau to exercise interception powers for the purpose of information assurance/cybersecurity, foreign intelligence gathering and

cooperation with other government agencies in discharging those agencies’ own functions and powers. The Bill also makes express provision for information assurance/cybersecurity and intelligence gathering in respect of New Zealand citizens and residents, but only with the joint approval of the responsible Minister and the Commissioner for Security Warrants, a quasi-judicial officer appointed under the New Zealand Security Intelligence Service Act 1969;


2.1.2 The Bill broadens the responsibilities and capacity of the Inspector-General under the IGIS Act, by introducing systemic and without notice auditing and by providing for the appointment of a Deputy Inspector-General; and

2.1.3 The Bill amends the Intelligence and Security Committee Act to provide that where the Prime Minister is also the minister responsible for an agency under scrutiny by that Committee, he or she may not act as Committee chairperson, and also provides for publication of Committee reports.

2.2 In providing for the interception of communications and other information gathering, the powers conferred by the Bill upon the GCSB do or may engage:

2.2.1 The right of freedom of expression affirmed by s 14 of the Bill of Rights Act, because of

specific restrictions on disclosure and the wider potential “chilling” effect of such interception on individuals’ otherwise private communications;

2.2.2 The right of non-discrimination under s 19(1) of the Act, because of the additional warrant requirement for interception of communications where that interception is directed at New Zealand citizens and residents, but not otherwise; and

2.2.3 The right against unreasonable search and seizure affirmed by s 21, because intrusion into privacy by way of interception can constitute search and/or seizure.

2.3 The consistency of the potentially intrusive powers of interception in the Bill with ss 14 and 21 of the Bill of Rights Act turns upon the purpose and scope of that potential intrusion and upon the applicable safeguards:

2.3.1 The purpose and scope of the powers conferred by the Bill are specifically prescribed:

(a) Their purpose is governed by the objective of the GCSB, which is to contribute to the national security, international relations and/or economic wellbeing of New Zealand.

(b) The powers conferred on GCSB are directed towards the protection, security, and integrity of information infrastructures, information about such infrastructures and the capabilities, intentions, and activities of foreign persons and foreign organisations.

(c) The provision in the Bill for the GCSB to provide assistance to other government agencies, including the Police, is contingent upon those other agencies’ powers, functions and safeguards and so raises no additional issue.

2.3.2 Further, while the exercise of interception powers for criminal law enforcement purposes is in general subject to judicial warrant, it is broadly accepted that a wider range of safeguard measures may be appropriate for intelligence-gathering and, particularly, intelligence-gathering conducted beyond New Zealand and/or directed at foreign intelligence. In that context, the safeguards provided by the Bill over the exercise of these powers are as follows:

(a) Any exercise of the powers conferred by the Bill, and by the continued provision for certain warrantless interception under s 16 of the GCSB Act, is subject under the Bill to systemic and without notice auditing by the Inspector-General for compliance with the Act and must also comply with a statutory personal information policy. These are in turn subject to referral to the Prime Minister and/or the Intelligence and Security Committee;

(b) Any interception of communications that would otherwise be unlawful may only be undertaken under warrant application determined by the responsible Minister, who must determine that the interception is necessary, justified by its intended outcome and subject to satisfactory measures to ensure consistency with the GCSB Act and reasonableness; and

(c) Any application for a warrant for the purpose of interception of the private communications of New Zealand citizens or residents must also be determined by the Commissioner of Security Warrants in accordance with the same criteria.
2.4 We conclude:

2.4.1 In terms of s 14, the potential “chilling” effect of the exercise of the powers for interception of private information conferred by the Bill is sufficiently narrowly directed at a sufficiently important purpose to be justifiable under s 5 of the Bill of Rights Act; and

2.4.2 The defined scope and applicable safeguards for the exercise of these powers are broadly consistent with accepted requirements for such powers in the context of intelligence-gathering and are therefore consistent with the right against unreasonable search in s 21.

2.5 Last, the consistency of the differential treatment of citizens and permanent residents under the Bill with the right against unjustified discrimination under s 19(1) depends upon whether that differentiation reflects a legitimate and/or justifiable distinction. We conclude that it does, on the grounds that:

2.5.1 The distinction does not concern the substantive scope of powers provided by the Bill, but rather the application of the provision for authorisation by warrant by the Commissioner of Security Warrants; and

2.5.2 That distinction reflects the greater expectation of privacy of citizens and permanent residents in respect of intelligence gathering and is also consistent with the lesser expectation of privacy, if any, in information held outside New Zealand and/or foreign intelligence information.
  1. We therefore conclude that the Bill appears consistent with the Bill of Rights Act.

Analysis

Amendments proposed by the Bill

  1. The Bill amends the Government Communications Security Bureau Act 2003, the Inspector-General of Intelligence and Security Act 1996 (IGISA) and the Intelligence and Security Committee Act 1996. The principal amendments proposed by the Bill are:
4.1 The introduction of separate and express provisions for the Government Communications Security Bureau (GCSB) to undertake information assurance/cybersecurity, intelligence gathering and cooperation with other government agencies in discharging those agencies’ own functions and powers (new ss 8-8C);

4.2 Provision for the GCSB to undertake information assurance/cybersecurity and intelligence gathering in respect of New Zealand citizens and permanent residents, but only upon issue of a warrant by the Commissioner of Security Warrants, a quasi-judicial officer appointed under the New Zealand Security Intelligence Service Act 1969 (new ss 14 and 15B);

4.3 New provision for the protection of personal information (new ss 25A-25B);
4.4 Expanded provision for the Inspector-General of Intelligence and Security, including for the appointment of a Deputy Inspector-General and a wider supervisory, audit and reporting role (Part 2); and

4.5 A restriction on the Prime Minister’s role as chair of the parliamentary Intelligence and Security Committee in some circumstances and provision for publication of Committee reports (Part 3).

Issues under the Bill of Rights Act

  1. The Bill raises three issues under the Bill of Rights Act:
5.1 As with the principal Acts, the Bill raises issues of freedom of expression under s 14 of that Act both in prohibiting the disclosure of certain information (see cl 8 and new s 25A(2)) and, by providing for the interception of communications (cll 14-15), in potentially “chilling” individuals’ communications.[1]

5.2 The provision for an expanded warrant process as an additional safeguard for information assurance/cybersecurity and intelligence gathering in respect of New Zealand citizens and permanent residents (new s 15B), but not for others, raises an issue of potential discrimination on the basis of ethnic or national origins, which include nationality or citizenship, under s 19(1) of the Act.

5.3 Most broadly, the provision for information assurance/cybersecurity, intelligence gathering and cooperation with other government agencies (new ss 8A-8C and cll 14-15) raises questions of search and/or seizure of information in terms of s 21 of the Act. While there is not yet a settled definition of “search”, its touchstone is the protection of reasonable expectations of privacy.[2] Electronic surveillance will generally constitute a search for the purpose of s 21.[3]

Freedom of expression

  1. The Bill necessarily limits freedom of expression both by requiring non-disclosure of certain information and, more broadly but indirectly, in deterring or “chilling” communication between individuals by permitting that communication to be monitored.
  2. The question is whether that limitation is demonstrably justifiable in terms of 5 of the Bill of Rights Act. In that respect, the purpose of the restrictions, however, is to support New Zealand’s national security, international relations and economic well-being, as well as, in some circumstances, the prevention of serious crime or threats to life (new ss 7 and 25). Further, the monitoring of communications is subject to restrictions, not only in terms of those purposes, but also restrictions on relevant powers to safeguard privacy so far as possible and several forms of external oversight.
  3. For the reasons also given below in respect of the right against unreasonable search and seizure, we conclude that those provisions ensure that the limitation upon freedom of expression is directed at and rationally and proportionately connected to a sufficiently

important objective. It follows that the limitation upon freedom of expression is, in our view, justified in terms of s 5 of the Act.

Right against unreasonable search and seizure


  1. The right against unreasonable search and/or seizure under s 21 of the Bill of Rights Act requires both that powers of search, and the exercise of those powers, are reasonable and that there are due safeguards to ensure that reasonableness.
  2. Two further and particular considerations arise in respect of the Bill. The first is that there is broad acceptance that the gathering of intelligence information for international relations and national security purposes entails a different balance of interests and different procedural protections than those that arise in criminal law enforcement:
10.1 The United States courts have held that when the object of intelligence-gathering is the protection of national security, the threat of criminal sanction is reduced, and ‘‘the

government has the greatest need for speed, stealth, and secrecy’’,[4] and have qualified or displaced the requirement for judicial warrant, which is substituted by executive government and/or quasi-judicial oversight for searches not involving United States citizens or residents;[5]


10.2 In Canada, the different objective of intelligence gathering has led to the acceptance of a lower threshold for domestic intelligence gathering[6] and to the removal of a warrant requirement for external intelligence gathering except where directed at Canadian nationals;[7] and

10.3 Most broadly, the European Court of Human Rights has emphasised that safeguards need not be exclusively judicial, but may also include executive and parliamentary, oversight. [8]
  1. The second particular consideration is that the emphasis in the Bill upon extraterritorial information and intelligence gathering raises the question of the extraterritorial application of Bill of Rights Act protections. The issue is not straightforward and it is possible that some conduct under the Bill might be found to fall outside the scope of the Act,[9] but New Zealand authority raises the possibility that jurisdiction would be found on the basis that extraterritorial actions could be subject to the Act where taken or directed from New Zealand.[10]
  2. For that reason, we have presumed for the purpose of considering the Bill that the Bill of Rights Act would apply to the extraterritorial exercise of the powers that it confers. However, and in light of the qualified approach taken by other jurisdictions and, particularly, decisions of the Supreme Court of Canada on the effect of context upon the right against unreasonable search,[11] we proceed on the basis that there is a more limited, if any, expectation of privacy and/or protection for that privacy under the Bill of Rights Act in respect of information held outside New Zealand.

Purpose and scope

  1. Against that context, we observe that the purpose and scope of the powers conferred by the Bill are prescribed in specific terms:
13.1 The powers conferred must be used by the GCSB within its overall objectives, which are to contribute to the national security, international relations and/or economic wellbeing of New Zealand (new s 7);

13.2 The particular functions prescribed encompass the protection, security, and integrity of information infrastructures, information about such infrastructures and the capabilities, intentions, and activities of foreign persons and foreign organisations (new ss 8A and 8B);

13.3 The provision in the Bill for the GCSB to provide assistance to other government agencies, including the Police, is contingent upon those other agencies’ powers, functions and safeguards (see new s 8C(2)) and so raises no additional issue;

13.4 The powers conferred also contain internal limits on their scope:

13.4.1 Section 14, as amended, retains a restriction on intelligence gathering in respect of New Zealand citizens or residents;

13.4.2 As below, the warrant provisions in new ss 15A and 15B require assessment not only that any interception to be authorised is within the purposes of the Act but also is justified, necessary and subject to satisfactory safeguards (new s 15A(2)) and may also be subject to such conditions as are desirable in the public interest (new s 15A(4));

13.4.3 The existing provision for certain warrantless interception in s 16, as amended, is limited to the information assurance/cybersecurity and foreign intelligence gathering functions of the GCSB (new s 16(1A); and

13.4.4 Incidentally obtained information may only be used for the purpose of prevention or detection of serious crime, prevention of or response to threats to human life and/or identification of, prevention of or response to threats to national security (substituted s 25).

Applicable safeguards

  1. Further, the Bill provides a series of safeguards:
14.1 Any exercise of the powers conferred by the Bill, and by the continued provision for certain warrantless interception under s 16 of the GCSB Act, is subject under the Bill to systemic and without notice auditing by the Inspector-General for compliance with the Act and must also comply with a statutory personal information policy. These are in turn subject to referral to the Prime Minister, to the Privacy Commissioner and/or the Intelligence and Security Committee;
14.2 Any interception of communications that would otherwise be unlawful may only be undertaken under warrant application determined by the responsible Minister, who must determine that the interception is necessary, justified by its intended outcome and subject to satisfactory measures to ensure consistency with the GCSB Act and reasonableness (see new s 15A(2));

14.3 Any application for a warrant for the interception for the purpose of interception of the private communications of New Zealand citizens or residents must also be determined by the Commissioner of Security Warrants in accordance with the same criteria (see new s 15B); and

14.4 The GCSB is itself required to adopt and apply a statutory policy on personal information (new ss 25A and 25B), in consultation with the Inspector-General and the Privacy Commissioner.
  1. In addition, the Bill expands systemic oversight of compliance with empowering provisions. Part 2 of the Bill extends the powers and responsibilities conferred by the IGISA so that:
15.1 The Inspector-General may inquire into the propriety of particular activities of the GCSB on referral or on his or her own motion without, as at present, the concurrence of the responsible Minister (cl 31 and new s 11(ca));

15.2 The Inspector-General is to review procedures for overall compliance with empowering legislation on an at least annual basis, in place of more limited current provision, and must certify these as sound in a report to the Prime Minister, which is then presented to the House of Representatives and published (cl 31, amended s 11(d) and cl 36);

15.3 The Inspector-General is to undertake unscheduled audits of compliance procedures (cl 31 and new s 11(da));

15.4 Reports of inquiries by the Inspector-General are, subject to withholding of sensitive information, to be made public (cl 35 and new s 25A); and

15.5 The responsible Minister is required to respond to any report of an inquiry (cl 34).
  1. Part 3 of the Bill introduces a new restriction on the Prime Minister’s role as chair of the Intelligence and Security Committee and provides for publication of that Committee’s reports.
  2. In line with the comparative caselaw concerning the scope of safeguards required for intelligence activities noted above, we conclude that these provisions constitute appropriate safeguards for the relevant powers and that those powers are, on that basis, consistent with s 21 of the Bill of Rights Act.

Right against discrimination

  1. The question of potential discrimination under the Bill concerns the application of the extended warrant procedure, under which information assurance/cybersecurity and/or intelligence gathering that involves New Zealand citizens or permanent residents may occur only with a warrant issued by both the responsible Minister and the Commissioner of Security Warrants, a quasi-judicial officer (see new ss 15B and 16(1A)(b)). Persons other than New Zealand citizens or permanent residents may be subject to information assurance/cybersecurity or intelligence gathering under warrantless powers or under warrant issued only by the responsible Minister (see s 16 and new s 15A).
  2. This distinction is therefore between applicable safeguards, rather than the scope of the substantive powers and, further, arises from persons’ legal status rather than stereotypical or otherwise unfair associations.[12] In that respect, the distinction reflects two legitimate differences relevant to the scope of those safeguards:
19.1 As noted above, it is accepted that the status of citizenship or permanent residence gives rise to a greater reasonably expectation of privacy, and the applicable procedural requirements follow those different expectations;[13] and

19.2 More broadly, persons other than citizens or permanent residents are more likely to be subject to information assurance/cybersecurity and/or intelligence gathering beyond New Zealand and/or for foreign intelligence purposes, such that there is a lesser, if any, expectation of privacy for the reasons given above.[14]
  1. For those reasons, we consider that the distinction drawn in the Bill between citizens or permanent residents and others does not amount to unjustifiable discrimination in terms of ss 5 and/or 19(1).

Yours sincerely


Crown Law


Ben Keith
Crown Counsel

Footnotes


[1] See, for example, Television New Zealand Ltd v Police [1995] 2 NZLR 541, 550.

[2] See, for example, Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 and R v Ngan [2007] NZSC 105; [2008] 2 NZLR 48.

[3] See R v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459.

[4] United States v Truong Dinh Hung [1980] USCA4 1042; 629 F2d 908 (1980) at 915; In re Sealed Case 310 F 3d 717 (2002); In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act 551 F3d 1004 (2008), 1011-1012.

[5] See 50 USC § 1802(a)(1)(B).


[6] Atwal v Canada [1988] 1 FC107.

[7] National Defence Act s 273.65. It has been suggested in commentary (Steven Penney "National Security Surveillance in an Age of Terror: Statutory Powers & Charter Limits" (2010) Osgoode Hall LJ 247, 280-281) that this provision is not consistent with the Canadian Charter, but there is no authority on the point.

[8] See Klass v Germany [1978] ECHR 4; (1979-80) 2 EHRR 214 and subsequent decisions.

[9] See, among others, Al-Skeini and Others v the United Kingdom (2011) 53 EHRR 18,

[137] (European Convention rights may apply extraterritorially, but contingent on factors such as control and authority over individual affected); Prime Minister v Khadr [2010] 1 SCR 44, [16] (extraterritorial application exceptional); but see X (Re) [2010] 1 FCR 640 at [46]- [48], [59] & [64] (application where actions originating in Canadian territory).


[10] See, particularly, Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289, [79].

[11] See, particularly, Schreiber v Canada (Attorney-General) [1998] 1 SCR 841, [19]-[25] (expectation of privacy in overseas records) and R v Simmons [1988] 2 SCR 495, 528 (expectation of privacy in border searches).

[12] This analysis arises either within the right of non-discrimination under s 19 itself or in finding prima facie discrimination to be justifiable under s 5: see, generally, the discussion in Ministry of Health v Atkinson [2012] NZCA 184; [2012] 3 NZLR 456 (CA), [79]-[117].

[13] See above at nn 5 & 7.

[14] See above at nn 6 & 11.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Government Communications Security Bureau and Related Legislation Amendment Bill. It should not be used or acted upon for any other purpose. The advice does

no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


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