15 December 2017

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Cat Barker and Claire Petrie (Parliamentary Library, Australia)

Joanna Dawson and Samantha Godec (House of Commons Library, United Kingdom)

Holly Porteous (Library of Parliament, Canada)

Pleasance Purser (Parliamentary Library, New Zealand)

This paper is a collaboration between parliamentary researchers from four countries. Each is separately responsible for the content and accuracy of the contributions. We are grateful to authors from Canada, New Zealand and the United Kingdom for their contributions to the paper.

Contents

Executive summary

Contributors

Glossary of acronyms

Introduction

Australia

Canada

New Zealand

United Kingdom

Comparative analysis

Conclusion

Executive summary

Australia, Canada, New Zealand, the United Kingdom and the United States each have some combination of parliamentary/congressional, independent and judicial oversight of their intelligence agencies, in addition to accountability through the executive branch. However, there are differences in the nature and scope of each of those components.

The six agencies comprising the Australian intelligence community are overseen by a parliamentary committee that examines their administration and expenditure and an independent Inspector-General of Intelligence and Security, who examines the legality and propriety of their activities. Most of the agencies’ activities and powers are authorised by the responsible ministers. A review completed in June 2017 recommended that the remits of the committee and the Inspector-General be expanded to include four additional agencies, and that the Inspector-General’s resources be significantly increased.

intelligence community are overseen by a parliamentary committee that examines their administration and expenditure and an independent Inspector-General of Intelligence and Security, who examines the legality and propriety of their activities. Most of the agencies’ activities and powers are authorised by the responsible ministers. A review completed in June 2017 recommended that the remits of the committee and the Inspector-General be expanded to include four additional agencies, and that the Inspector-General’s resources be significantly increased. Canada has passed legislation creating a committee of parliamentarians to review the policy, administration, finance and operations of Canada’s national security and intelligence community. At present, only two agencies are subject to dedicated independent expert review for lawfulness. Canada’s national police force, which has responsibility for investigating security offences, is subject to independent expert review. However, this review is limited to handling public complaints about police officer conduct and, with the consent of the Public Safety Minister, undertaking public interest studies of specified activities. A Bill has been introduced that would create a single expert review body mandated to investigate complaints made in relation to the activities of three agencies and to examine the lawfulness, reasonableness and necessity of all national security and intelligence activities undertaken in the federal government. The Bill also proposes the creation of an Intelligence Commissioner to give final approval to certain activities undertaken by Canada’s signals intelligence and security intelligence agencies.

has passed legislation creating a committee of parliamentarians to review the policy, administration, finance and operations of Canada’s national security and intelligence community. At present, only two agencies are subject to dedicated independent expert review for lawfulness. Canada’s national police force, which has responsibility for investigating security offences, is subject to independent expert review. However, this review is limited to handling public complaints about police officer conduct and, with the consent of the Public Safety Minister, undertaking public interest studies of specified activities. A Bill has been introduced that would create a single expert review body mandated to investigate complaints made in relation to the activities of three agencies and to examine the lawfulness, reasonableness and necessity of all national security and intelligence activities undertaken in the federal government. The Bill also proposes the creation of an Intelligence Commissioner to give final approval to certain activities undertaken by Canada’s signals intelligence and security intelligence agencies. New Zealand’s Intelligence and Security Act 2017 replaces the four acts that previously applied to the two intelligence and security agencies and their oversight bodies, and implements recommendations from the first periodic review of the agencies. The agencies are overseen by a parliamentary committee, which scrutinises their policies, administration and expenditure, and an independent Inspector-General of Intelligence and Security who ensures that the agencies act with propriety and operate lawfully and effectively. Intelligence warrants may be issued by a responsible minister either solely, or jointly with a Commissioner of Intelligence Warrants.

Intelligence and Security Act 2017 replaces the four acts that previously applied to the two intelligence and security agencies and their oversight bodies, and implements recommendations from the first periodic review of the agencies. The agencies are overseen by a parliamentary committee, which scrutinises their policies, administration and expenditure, and an independent Inspector-General of Intelligence and Security who ensures that the agencies act with propriety and operate lawfully and effectively. Intelligence warrants may be issued by a responsible minister either solely, or jointly with a Commissioner of Intelligence Warrants. In the United Kingdom , the main focus of the Intelligence and Security Committee is to oversee the expenditure, administration, policies and (with some limitations) operations of the three key intelligence agencies, though it has scope to examine the work of other intelligence, security and law enforcement agencies too. The Investigatory Powers Commissioner provides independent oversight of the use of intrusive powers by the three key intelligence agencies. The Commissioner, along with several judicial commissioners, is required to keep under review the exercise by public bodies of various statutory functions, and may be directed by the Prime Minister to review any other functions of the three key intelligence agencies. Legislation has been passed under which warrants, currently issued by ministers, will only come into force after being reviewed by a judicial commissioner. The Investigatory Powers Tribunal investigates complaints about public bodies’ use of investigatory powers.

, the main focus of the Intelligence and Security Committee is to oversee the expenditure, administration, policies and (with some limitations) operations of the three key intelligence agencies, though it has scope to examine the work of other intelligence, security and law enforcement agencies too. The Investigatory Powers Commissioner provides independent oversight of the use of intrusive powers by the three key intelligence agencies. The Commissioner, along with several judicial commissioners, is required to keep under review the exercise by public bodies of various statutory functions, and may be directed by the Prime Minister to review any other functions of the three key intelligence agencies. Legislation has been passed under which warrants, currently issued by ministers, will only come into force after being reviewed by a judicial commissioner. The Investigatory Powers Tribunal investigates complaints about public bodies’ use of investigatory powers. The United States intelligence community comprises 17 executive branch entities. Congressional oversight of the intelligence community is spread across several committees, including specialised committees on intelligence in the House and the Senate. While each has some limits on what it may examine, taken collectively the committees have the ability to inquire into all of the intelligence-related activities of the US Government. The Executive Office of the President houses several key mechanisms for overseeing the intelligence community, including the President’s Intelligence Advisory Board and the Privacy and Civil Liberties Oversight Board. These are augmented by a network of Inspectors General and legal counsels. In addition to Inspectors General attached to specific agencies and departments, the Inspector General of the Intelligence Community conducts audits, inspections and investigations of cross-cutting programs and activities. The federal judiciary examines a wide range of intelligence activities under a number of laws, including the Constitution. Most notably, the Foreign Intelligence Surveillance Court reviews applications for warrants related to the collection of foreign intelligence by the US Government.

intelligence community comprises 17 executive branch entities. Congressional oversight of the intelligence community is spread across several committees, including specialised committees on intelligence in the House and the Senate. While each has some limits on what it may examine, taken collectively the committees have the ability to inquire into all of the intelligence-related activities of the US Government. The Executive Office of the President houses several key mechanisms for overseeing the intelligence community, including the President’s Intelligence Advisory Board and the Privacy and Civil Liberties Oversight Board. These are augmented by a network of Inspectors General and legal counsels. In addition to Inspectors General attached to specific agencies and departments, the Inspector General of the Intelligence Community conducts audits, inspections and investigations of cross-cutting programs and activities. The federal judiciary examines a wide range of intelligence activities under a number of laws, including the Constitution. Most notably, the Foreign Intelligence Surveillance Court reviews applications for warrants related to the collection of foreign intelligence by the US Government. Despite differences in the approach taken, each of the five countries has developed a framework that includes a system of checks and balances that spans the various branches of government, and which aims to ensure that agencies are accountable for both their administration and expenditure and the legality and propriety of their activities.

The intelligence communities have evolved to meet new challenges as they arise, and will continue to do so. It will be important for the oversight arrangements to keep pace with such changes.

Contributors

This research paper represents a collaborative effort between researchers in Australia, Canada, New Zealand, and the United Kingdom, all of whom work in research organisations supporting their respective national parliaments.

The project was led by Cat Barker (Parliamentary Library, Australia). The other contributors were Claire Petrie (Parliamentary Library, Australia), Holly Porteous (Library of Parliament, Canada), Pleasance Purser (Parliamentary Library, New Zealand), and Joanna Dawson and Samantha Godec (House of Commons Library, United Kingdom).

The Congressional Research Service’s (CRS, United States) publication policies precluded it from participating at this time.[1] Information on US arrangements has been included in the comparative section of this paper based on research conducted by Cat Barker and Samantha Godec.

Glossary of acronyms

AAT Administrative Appeals Tribunal (Aus) ACIC Australian Criminal Intelligence Commission AFP Australian Federal Police AGO Australian Geospatial-Intelligence Organisation AIC Australian Intelligence Community ASD Australian Signals Directorate ASIO Australian Security Intelligence Organisation ASIS Australian Secret Intelligence Service AUSTRAC Australian Transaction Reports and Analysis Centre CBSA Canada Border Services Agency CFINTCOM Canadian Forces Intelligence Command CRCC Civilian Review and Complaints Commission for the RCMP CSE Communications Security Establishment (Can) CSIS Canadian Security Intelligence Service DIBP Department of Immigration and Border Protection (Aus) DIO Defence Intelligence Organisation (Aus) DND Department of National Defence (Can) ETHI



House of Commons Standing Committee on Access to Information, Privacy and Ethics (Can) FINTRAC Financial Transactions and Reports Analysis Centre (Can) GCHQ Government Communications Headquarters (UK) GCSB Government Communications Security Bureau (NZ) HPSCI House Permanent Select Committee on Intelligence (US) IG Inspector-General (US) IGIS Inspector-General of Intelligence and Security (Aus; NZ) INSLM Independent National Security Legislation Monitor (Aus) IPA Investigatory Powers Act 2016 (UK) IPC Investigatory Powers Commissioner (UK) ISA Intelligence Services Act 1994 (UK) IS Act Intelligence Services Act 2001 (Aus) ISC Intelligence and Security Committee (NZ; UK) IPT Investigatory Powers Tribunal (UK) JIC Joint Intelligence Committee (UK) JSA Justice and Security Act 2013 (UK) MI5 Security Service (UK) MI6 Secret Intelligence Service (UK) NSIA National Security and Intelligence Advisor to the Prime Minister (Can) NSICOP National Security and Intelligence Committee of Parliamentarians (Can) NSICPA National Security and Intelligence Committee of Parliamentarians Act (Can) NSIRA National Security and Intelligence Review Agency (Can) NZSIS New Zealand Security Intelligence Service OCSEC Office of the Communications Security Establishment Commissioner (OCSEC) ONA Office of National Assessments (Aus) PCLOB Privacy and Civil Liberties Oversight Board (US) PIAB President’s Intelligence Advisory Board (US) PJCIS Parliamentary Joint Committee on Intelligence and Security (Aus) PSC Public Safety Canada RCMP Royal Canadian Mounted Police RIPA Regulation of Investigatory Powers Act 2000 (UK) SECD Standing Senate Committee on National Security and Defence (Can) SECU



House of Commons Standing Committee on Public Safety and National Security (Can) SIRC Security Intelligence Review Committee (Can) SIS Secret Intelligence Service (UK) SSCI Senate Select Committee on Intelligence (US) USIC US Intelligence Community

Introduction

The size and powers of Western national security and intelligence agencies have increased significantly since the 9/11 terrorist attacks. Information revealed by Edward Snowden in 2013 and further reforms to intelligence agency powers, including those aimed at dealing more effectively with threats associated with the Islamic State group and ‘foreign fighters’, have ensured that the accountability framework that applies to those agencies is of continuing interest.

The intelligence communities and associated oversight frameworks in Australia, Canada, New Zealand, the United Kingdom and the United States have each evolved to meet the particular needs of those countries and the specific contexts in which they operate. However, as Western democratic nations facing similar challenges in balancing the imperative of accountability with the need for intelligence agencies to operate with a degree of secrecy, and sharing a close intelligence-sharing and co-operation relationship under the Five Eyes arrangements, these countries serve as relevant and useful comparators to one another.[2] The independent oversight bodies in the five countries agreed in September 2016 to establish the Five Eyes Intelligence Oversight and Review Council ‘to facilitate the sharing of experiences and best practice in oversight and review’. It will meet annually in person and quarterly by secure electronic communication.[3]

Outline and purpose

This Research Paper first provides information by country on the intelligence communities, key mechanisms for oversight of the intelligence community and any recent changes to, or reviews of, the oversight frameworks in Australia, Canada, New Zealand and the UK. This is followed by comparative analysis that highlights some of the similarities and differences between those countries (and the US) in the arrangements that exist for intelligence oversight.

In each country, there is some combination of parliamentary/congressional, independent and judicial oversight in place, in addition to accountability through the executive branch. However, there are differences in the nature and scope of each of those components. Examples include the extent to which parliamentary or congressional committees can access classified material, and to which they may examine the operations (as distinct from administration, expenses and policies) of the intelligence agencies; and whether independent oversight is primarily centralised or distributed. In all but the US, significant reviews of, or reforms to, intelligence oversight arrangements have been undertaken in the previous five years, and further specific reforms are currently under consideration in Australia and Canada. It is hoped that by drawing out some of the similarities and differences between these systems, this paper will support each country’s parliamentarians in their consideration of current arrangements and any potential reforms.

Scope

The information on each country’s intelligence oversight framework is focused mainly on the key mechanisms in place in the parliamentary/congressional, independent and judicial spheres. Less detail is included on broader systems of executive oversight and other accountability mechanisms such as auditors-general, whose jurisdiction may include, but is not specifically focused on, intelligence agencies.

The agencies considered ‘in-scope’ for each country are those that are defined or considered by that country to comprise its intelligence community at the time of publication. The oversight arrangements described are, except where otherwise noted, those in place at the time of publication. Reforms being considered at the time of publication are covered in the sections on recent developments and reform proposals in each of the country sections.

Australia

Overview of intelligence agencies

The Australian Intelligence Community (AIC) comprises the six agencies outlined below. The AIC is part of the broader national security community that includes law enforcement, border protection and policy agencies.[4]

The Australian Security Intelligence Organisation (ASIO) is Australia’s national security intelligence agency. Its role is to identify, investigate, and provide advice on threats to security and it is responsible to the Attorney-General.[5]

The Australian Secret Intelligence Service (ASIS) is Australia’s overseas secret intelligence collection agency. Its main functions are to collect and distribute across the Australian Government foreign intelligence that may impact on Australia’s interests, carry out counter-intelligence activities and liaise with overseas intelligence and security agencies. ASIS is responsible to the Minister for Foreign Affairs.[6]

The Office of National Assessments (ONA) is responsible for analysing and providing advice on information (including open source) relating to international matters of political, strategic or economic interest to Australia. It also plays a role in coordinating and evaluating Australia’s foreign intelligence activities. ONA is responsible to the Prime Minister.[7]

There are three intelligence agencies within the Department of Defence, two of which have responsibilities beyond that portfolio. The Australian Signals Directorate (ASD; formerly known as the Defence Signals Directorate, or DSD) collects and analyses foreign signals intelligence and provides information and communications security advice and services to the Australian Government.[8] The Australian Geospatial-Intelligence Organisation’s (AGO) main role is to collect and analyse geospatial and imagery intelligence for the purposes of informing the Government about the capabilities, intentions or activities of people or organisations outside Australia, supporting Australian Defence Force (ADF) activities and supporting the national security functions of Commonwealth and state authorities.[9] The Defence Intelligence Organisation (DIO) assesses and analyses intelligence on countries and foreign organisations to support ADF operations, capability and policy development, as well as broader decision-making on defence and national security issues.[10]

Oversight

Oversight summary

Two Royal Commissions led by Justice Robert Marsden Hope in the 1970s and 1980s, and further major reviews in the 1990s and early 2000s have played a significant role in shaping Australia’s framework for oversight of its intelligence agencies.[11] While the AIC has grown and evolved significantly in the intervening period, the key oversight mechanisms have remained largely unchanged.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Inspector-General of Intelligence and Security (IGIS) perform complementary roles. The Committee oversees the administration and expenditure of the intelligence agencies, while the Inspector-General reviews their operational activities. These standing mechanisms are supplemented by periodic external reviews of the intelligence agencies, with the most recent completed in June 2017.[12] Changes to oversight arrangements recommended by the most recent review are outlined below in the section titled ‘Recent developments and reform proposals’.

Judicial oversight of intelligence activities is limited, with the courts having little involvement in the issuing or monitoring of warrants. The only specialised tribunal is the Security Division of the Administrative Appeals Tribunal, which conducts merits review of most categories of adverse security assessments issued by ASIO.[13]

The budgets of ASIO, ASIS and ONA are published in annual Portfolio Budget Statements, and the agencies can be held to account at related hearings of Senate committees (see below under ‘Senate Standing Committees’; ASIO is the only agency to routinely appear at those hearings).[14] However, additional funding for ASIO and ASIS provided in the 2017–18 Budget was not included in the totals set out in the Portfolio Budget Statements, and it is unclear whether other amounts might have also been excluded.[15]

ASIO is the only agency which produces a publicly available annual report, which is then also tabled in Parliament. A classified version of ASIO’s annual report is provided to the Attorney-General, who must share it with the Leader of the Opposition.[16] All AIC agencies are subject to financial and administrative audits by the Australian National Audit Office.[17]

The Independent National Security Legislation Monitor (INSLM) does not oversee the agencies themselves, but has a related function of reviewing the operation, effectiveness and implications of counter-terrorism and national security legislation, including ASIO’s special powers relating to terrorism.[18]

Parliamentary oversight

Parliamentary Joint Committee on Intelligence and Security

The PJCIS was first established in 1988 as the Parliamentary Joint Committee on the Australian Security Intelligence Organisation.[19] ASIS was brought under the Committee’s remit in 2002, implementing a recommendation of the Commission of Inquiry into the Australian Secret Intelligence Service (Samuels Inquiry) that reported in 1995.[20] ASD was added at the same time.[21] The PJCIS has overseen all six AIC agencies since 2005, when its mandate was extended to include ONA, DIO and AGO in response to a recommendation of the 2004 Report of the Inquiry into Australian Intelligence Agencies (the Flood Review).[22]

Functions

The PJCIS is established under Part 4 of the Intelligence Services Act 2001 (IS Act), with additional detail set out in Schedule 1 to the Act. Section 29 sets out what the PJCIS’s functions are, and just as importantly, what they are not. With respect to oversight of the AIC, the PJCIS’s functions are (subject to the limitations set out below) to:[23]

review the administration and expenditure of the AIC agencies, including their annual financial statements

review any matter in relation to an AIC agency referred to it by the responsible minister or a House of Parliament

review any matter in relation to ASIO’s activities relating to the telecommunications data retention scheme that are set out in an annual report about the scheme by ASIO and

report its comments and recommendations to each House of Parliament and the responsible minister.[24]

The PJCIS is specifically precluded from reviewing:

the intelligence gathering and assessment priorities of the AIC agencies

the sources of information, other operational assistance or operational methods available to the AIC agencies

particular operations that have been, are being, or are proposed to be undertaken by ASIO, ASIS, AGO, DIO, or ASD[25]

information provided by a foreign government (or one of its agencies) where that government does not consent to the disclosure of the information

an aspect of the activities of an AIC agency that does not affect an Australian person

rules made about protecting the privacy of Australians

the content of, or conclusions reached in, assessments or reports made by DIO or ONA, or reviewing sources of information on which such assessments or reports are based and

the coordination and evaluation activities undertaken by ONA.[26]

Powers and performance of functions

The PJCIS conducts annual reviews of the administration and expenditure of the AIC agencies. These reviews are based on information provided by the AIC agencies, the IGIS and the Auditor-General in submissions (most of which are classified) and at closed hearings.[27] The reports on these reviews are tabled in each House of Parliament and published on the PJCIS’s website. They include commentary from the PJCIS on relevant matters, and sometimes specific recommendations to government. For example, in its report for 2011–13, the PJCIS recommended that the Government review the continued application of the efficiency dividend and other savings measures to AIC agencies, and that it consider reforms necessary to equip the AIC to meet the challenges posed by technological changes.[28]

The PJCIS does not have the power to initiate its own inquiries into matters relating to the activities of an AIC agency. However, it may, by resolution, request that the responsible minister refer such a matter (though ministers may decline such requests).[29] As noted above, matters may also be referred by a House of Parliament. In practice, most previous inquiries conducted by the PJCIS or its predecessors into matters relating to the activities of an AIC agency were initiated by a referral from the minister, and almost all have concerned potential or proposed reforms to legislation.[30] A notable exception on both counts was the referral in June 2003 by the Senate to the PJC on ASIO, ASIS and DSD of an inquiry into intelligence on Iraq’s weapons of mass destruction—one of only three inquiries referred by a House of Parliament to the PJCIS or a predecessor committee.[31] There appear to have been only two instances of a minister referring a matter at the request of the PJCIS or a predecessor committee—the first in February 2000, on the nature, scope and appropriateness of ASIO’s public reporting, and the second in March 2015, on the authorisation of access to telecommunications data to identify a journalist’s source.[32]

The IS Act grants powers to the PJCIS to support its functions. The PJCIS may request a briefing from the head of an AIC agency or from the IGIS.[33] It may also require a person to appear before it and give evidence or produce documents if it has reasonable grounds to believe the person is capable of giving the information or documents sought, though there are some constraints on this power.[34] The PJCIS cannot use that power on the IGIS or any of the IGIS’s staff.[35] For AIC agencies, the power may only be used on the heads of agencies (though an agency head may nominate a staff member).[36] In line with limits on its functions, the PJCIS must not require anyone to disclose to it any information that is operationally sensitive, or that might prejudice Australia’s national security or the conduct of its foreign relations.[37] A minister responsible for an AIC agency may issue a certificate to the PJCIS to prevent a person from disclosing operationally sensitive information where a person is about to produce a document or is giving, or about to give, evidence.[38]

The PJCIS has the power to take evidence on oath or affirmation and, subject to limitations around sensitive information, to disclose or publish evidence and the content of documents that it receives.[39] It may only conduct a review in public with the approval of the ministers responsible for the AIC agencies.[40]

The PJCIS’s reports on its reviews and inquiries are tabled in Parliament and are publicly available online, as are the annual reports on its own activities that it is required to make under the IS Act.[41]

Composition and appointment

The PJCIS is required to comprise five senators and six members of the House of Representatives. It must also have a majority of government members and be chaired by a government member. Members of the PJCIS are appointed by a resolution of each House of Parliament, following nomination by the Prime Minister (for the House of Representatives) and the Leader of the Government in the Senate (for the Senate). Nominations are to be made following consultation with each recognised non-government party represented in each House of Parliament, and with regard to ‘the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament’. Ministers, the President of the Senate and the Speaker of the House of Representatives are not eligible to be appointed to the PJCIS. The PJCIS is re-established following the commencement of each new Parliament, and appointments are generally for the term of the Parliament.[42]

The PJCIS and its predecessors have generally comprised six government and five Opposition members, but has not included members from the crossbench.[43] This has attracted criticism from crossbench parliamentarians.[44]

Resourcing

The PJCIS is supported by a secretariat provided by the Department of the House of Representatives. The secretariat has two dedicated research staff. The research staff are responsible to a Committee Secretary and are supported by an administrative staff member, both of whom work across the PJCIS and another committee. Additional research staff are allocated across committees supported by the Department of the House of Representatives according to the needs of those committees at any given time. Under a standing agreement reached with the Government in 2015, the PJCIS also seconds technical advisers to its secretariat as needed from the Attorney-General’s Department and other agencies, including ASIO. The IS Act requires all staff supporting the PJCIS to be security-cleared to the same level and at the same frequency as staff of ASIS (Positive Vetting, which is the highest level).[45]

Senate Standing Committees: Senate Estimates

The Legislation Committee of each Senate Standing Committee examines the estimates of proposed and additional expenditure for public service departments and other Commonwealth agencies, generally three times per year. The committees hold public hearings at which they have the opportunity to question ministers (or their representatives in the Senate) and government officials about the administration of government.[46]

These hearings provide an additional means of imposing financial accountability, though in practice the extent to which AIC agencies are subject to scrutiny through the Senate Estimates process varies. ASIO is the only AIC agency to routinely appear at Senate Estimates hearings in its own right.[47] Questions relating to the other AIC agencies tend to be addressed to the lead portfolio departments.[48] The IGIS also appears at Senate Estimates.[49]

Inspector-General of Intelligence and Security

The office of the IGIS was recommended by the Royal Commission on Australia’s Security and Intelligence Agencies in 1984.[50] The Commissioner considered there would be merit in an independent oversight body to provide the public with greater assurance that the activities of the AIC agencies are proper, and ‘to clear [agencies] or bring [them] to task, as the case may be, if allegations of improper conduct are made’.[51] The IGIS was established by the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) and commenced operation in February 1987.[52]

The IGIS is an independent statutory office-holder appointed by the Governor-General. Broadly, the IGIS’s role is ‘to ensure that the agencies act legally and with propriety, comply with ministerial guidelines and directives and respect human rights’.[53]

Functions

The IGIS has several main functions: AIC agency inquiry functions, intelligence and security matter inquiry functions, AIC agency inspection functions, and public interest disclosure functions.[54]

The IGIS’s AIC agency inquiry functions differ somewhat across the six AIC agencies, and are broadest in relation to ASIO.[55] The IGIS may inquire into the compliance by AIC agencies with Australian laws and any guidelines or directions given by the responsible minister; the propriety of the agencies’ activities; any act or practice of an agency that may be inconsistent with or contrary to human rights law; and the procedures of the agencies relating to the redress of grievances of their employees.[56] Whether an inquiry may be initiated at the request of the responsible minister, of the IGIS’s own motion, and/or in response to a complaint, differs somewhat across matters and agencies. In most instances, the IGIS may initiate an inquiry at least at the request of the responsible minister, or of the IGIS’s own motion.[57] The IGIS requires ministerial approval to inquire into a matter relating to a Commonwealth agency that occurred outside Australia or before commencement of the IGIS Act.[58]

The Prime Minister may request that the IGIS inquire into a matter relating to an AIC agency, or an intelligence or security matter relating to any Commonwealth agency, and the IGIS must generally comply with such a request.[59] The IGIS may not, of its own motion, inquire into an intelligence or security matter relating to a non-AIC agency.

The IGIS may conduct inspections of AIC agency records as the IGIS considers appropriate, to ensure agencies are acting legally, with propriety and in accordance with human rights.[60] The IGIS indicates that its inspections enable it to ‘identify issues or concerns before they develop into systemic problems that could require major remedial action’.[61] The IGIS’s inspection activities include reviewing records relating to ASIO’s use of special powers, including supporting materials accompanying warrant applications; reviewing ministerial authorisations issued to ASIS, AGO and ASD; reviewing ASIS operational files and its application of weapons guidelines; and monitoring agency compliance with relevant legislation.[62]

The IGIS is also responsible for overseeing AIC agency handling of public interest disclosure matters and investigating such matters where they relate to AIC agencies.[63]

Powers and performance of functions

The IGIS has significant powers, broadly comparable to a Royal Commission, to support the performance of its inquiry functions. These include powers to obtain information and documents, take evidence and enter Commonwealth agency premises.[64] Due to the sensitive nature of the matters and activities into which the IGIS may inquire, inquiries are required to be conducted in private.[65]

The IGIS must produce reports on its inquiries and provide them to the relevant agency heads (unless the matter concerns an agency head) and the responsible ministers.[66] Summaries of inquiries are generally included in the IGIS’s annual reports, and unclassified versions of inquiry reports are sometimes published on the IGIS’s website.[67] The current IGIS and former holders of the office have recognised the importance of making public as much of the IGIS’s work as possible within security constraints.[68]

If an agency head has taken, or proposes to take, action in response to conclusions or recommendations in an IGIS inquiry report, he or she must provide details of any such action to the IGIS. If the IGIS does not consider that adequate and appropriate action has been taken in a reasonable period, the IGIS may prepare a report on the matter for the responsible minister or the Secretary of the Department of Defence.[69]

The IGIS has full access to information and records held by the AIC agencies for the purpose of fulfilling its inspection functions.[70] The responsible minister must provide the IGIS with copies of any guidelines or directions issued to ASIO, ASIS, AGO and ASD as soon as practicable.[71] AIC agencies must provide the IGIS with copies of reports given to a responsible minister or the Secretary of the Department of Defence if requested to do so by the IGIS.[72] AIC agencies must also notify the IGIS of the authorisation and use of particular powers. For example, copies of emergency warrants or authorisations made by agency heads (in place of a minister) must be provided, and ASIO must notify the IGIS of any use of force against a person during the execution of a warrant, the authorisation of a ‘special intelligence operation’, and matters relating to its special terrorism powers.[73]

In 2006, the IGIS noted that 60 to 70 per cent of its resources were devoted to proactive inspection activities and 30 to 40 per cent to inquiry work.[74] More recent data on the proportional distribution of resources does not appear to have been made public.

Appointment

The IGIS is appointed by the Governor-General, and may be appointed on a full or part-time basis.[75] The Prime Minister is required to consult with the Leader of the Opposition before recommending an appointee to the Governor-General.[76] The IGIS may be appointed for a period of up to five years, and may be re-appointed no more than twice.[77] If a person was appointed to the office of IGIS as a judge and ceases to be a judge, the Governor-General may terminate the person’s appointment.[78] Otherwise, the Governor-General may terminate the IGIS’s appointment by reason of misbehaviour or physical or mental incapacity.[79]

Resourcing

As at 30 June 2017, the IGIS was supported by 15 ongoing public service employees (including an Assistant IGIS), four of whom worked part-time.[80] The IGIS’s budgeted expenses for 2017–18 amount to A$3.32 million.[81] Unfortunately, it is not possible to determine the staffing and resources of the IGIS as a proportion of that of the AIC agencies because such information is not made available for the three defence intelligence agencies.

While the IGIS’s key functions have remained the same in recent years, the powers of the AIC agencies, most notably ASIO, have expanded in that time. So, while the nature of the IGIS’s oversight role has not changed, the breadth of powers it now oversees (and in the current security environment, possibly the increased use of some powers[82]) has placed additional resourcing pressures on the agency. However, the IGIS noted in its Annual Report 2015–16 that it had received additional funding as part of the package in the 2014–15 Mid-Year Economic and Fiscal Outlook, and had been exempted from the efficiency dividend from 2015–16 onwards.[83] It also stated that this was allowing additional staff to be recruited ‘to enable the office to continue to provide a comprehensive and effective oversight program’.[84]

Judicial oversight

Warrants

Judicial oversight of, or involvement with, the authorisation of AIC agency powers is limited. Ministerial authorisation is required for certain activities of ASIS, AGO and ASD, and subject to the exception noted below, warrants for ASIO’s exercise of powers are issued by the Attorney-General.[85]

ASIO has access to special powers in relation to terrorism offences, under which it may obtain a warrant either to question a person without detention for a maximum of 24 hours (Questioning Warrants), or to detain a person for questioning for a maximum of seven continuous days (Questioning and Detention Warrants).[86] To apply for such a warrant, the Director-General of ASIO must obtain the consent of the Attorney-General, and then apply to an ‘issuing authority’ for the warrant’s issue.[87] An issuing authority is a current federal magistrate or judge of a federal, state or territory court who has been appointed by the Attorney-General, though there is the capacity for the Attorney-General to declare persons in a specified class to be issuing authorities regardless of their position or expertise.[88] Once the warrant is granted, the person is brought before a ‘prescribed authority’—usually a former judge of a state or territory District or Supreme Court—who oversees and supervises the exercise of power under the warrant.[89]

Importantly, a judge appointed as an issuing authority or prescribed authority is acting in a personal, not judicial, capacity.[90] Furthermore, the role played by both is limited. To issue a warrant, an issuing authority need only be satisfied that there are reasonable grounds for believing it will substantially assist the collection of intelligence that is important in relation to a terrorism offence.[91] He or she does not have to consider whether there may be other effective methods for collecting the evidence, or, in the case of a Questioning and Detention Warrant, whether detention is necessary—these are matters considered by the Attorney-General in consenting to the warrant request.[92] A judge acting as a prescribed authority can supervise and steer the questioning process, but these powers are also restricted—for example, a prescribed authority cannot generally make a direction inconsistent with the terms of a warrant.[93]

Role of the courts

Decisions made in relation to special terrorism powers warrants are not subject to merits review, and the ASIO Act expressly excludes the jurisdiction of state and territory courts while the warrant is in force.[94] Decisions under the ASIO Act, the IS Act and other intelligence legislation are also excluded from the statutory judicial review framework set out in the Administrative Decisions (Judicial Review) Act 1977.[95] However, a person may apply to the Federal Court of Australia or High Court of Australia for judicial review of actions by officers of the Commonwealth to ensure these actions are carried out within their statutory and constitutional limits.[96]

The only specialised tribunal providing oversight in relation to intelligence matters is the Security Division of the Administrative Appeals Tribunal (AAT), which conducts merits review of most categories of adverse security assessments made by ASIO.[97] Hearings in this division are conducted in private, and the Attorney-General may issue a public interest certificate to require sensitive national security information to be withheld from the applicant.[98] Judicial review of the process of ASIO making a security assessment is also available through the Federal Court and High Court.

Immunities and prosecutions

Staff members and agents of ASIS, ASD and AGO have immunity from civil and criminal liability for activities carried out by the agencies in the proper performance of their functions, which might otherwise be prohibited by certain Australian laws.[99] This immunity can only be overridden by other Commonwealth, state or territory laws if those laws explicitly provide otherwise.[100] Similarly, ASIO officers participating in a ‘special intelligence operation’ (SIO) are not subject to civil or criminal liability in relation to conduct engaged in during the course of, and for the purposes of, the SIO, and in accordance with the SIO authority. There are exceptions to this immunity for conduct which causes death or serious injury; constitutes torture; involves the commission of a sexual offence; or in which the participant induces another person to commit an offence that the other person would not have intended to commit.[101]

Australian courts have prosecuted intelligence officers, and other persons who have been entrusted with intelligence information, for unauthorised disclosures of such information.[102]

Inadmissibility of evidence

The courts have previously ruled as inadmissible intelligence sought to be admitted in evidence in criminal prosecutions, due to impropriety in the process of obtaining the intelligence. An example is the matter of R v Ul-Haque [2007] NSWSC 1251, in which evidence of admissions made by the defendant in a counter-terrorism prosecution to ASIO and Australian Federal Police (AFP) officers was excluded by the NSW Supreme Court under section 138 of the Evidence Act 1995 (which provides for the exclusion of improperly or illegally obtained evidence) and section 84 (which excludes evidence of admissions that were influenced by ‘violent, oppressive, inhuman or degrading conduct’).[103] In finding the evidence inadmissible, the trial judge was highly critical of the conduct of ASIO officers in the case, finding them to have ‘assumed unlawful powers of direction, control and detention’.[104] The proceedings were subsequently discontinued.[105]

Information sharing and cooperation between oversight bodies

The functions of the PJCIS and the IGIS are complementary rather than overlapping, and the PJCIS is prohibited from seeking ‘operationally sensitive information’, meaning the scope for cooperation between the two is fairly limited. However, some information is shared between them, mainly from the IGIS to the PJCIS.

As noted above, the PJCIS may request briefings from the IGIS. The IGIS makes submissions to, and provides evidence at hearings for, the PJCIS’s reviews of AIC agency administration and expenditure. The IGIS will often also provide evidence to PJCIS inquiries into legislation that is being proposed or reviewed which is relevant to the IGIS’s oversight role or the functions of the AIC agencies more broadly, and to reviews conducted by the INSLM.[106] The IGIS’s annual report for 2015–16 describes its cooperation with the AAT and the Australian Information Commissioner as assisting in ‘enhancing oversight and promoting good practice in the [AIC] agencies’.[107]

The INSLM may consult with the IGIS when performing functions relating to Australia’s counter-terrorism and national security legislation.[108] The PJCIS may refer a matter to the INSLM that it becomes aware of in the course of performing its functions.[109]

Recent developments and reform proposals

Jurisdiction of the PJCIS

The PJCIS’s functions have gradually expanded in recent years, in response to its own recommendations.[110] However, those changes have largely related to functions other than AIC agency oversight; in particular, expansion of its legislative review functions and the inclusion of a new function to monitor and review the AFP’s counter-terrorism functions.[111]

PJCIS amendment Bill

Opposition senator Penny Wong introduced the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 on 10 August 2015. The Bill lapsed ahead of the 2016 federal election but was restored to the notice paper on 31 August 2016.[112] It would amend the composition, functions and powers of the PJCIS.

The Bill would allow the PJCIS to conduct own-motion inquiries into matters relating to one or more of the AIC agencies, providing it had first consulted the responsible minister. It would not affect the existing restrictions preventing the PJCIS from inquiring into operational matters.

As noted above, the PJCIS must currently comprise five senators and six members of the House of Representatives, have a government majority, and a government chair. The Bill would retain the requirement for a government majority, but relax the Senate/House of Representatives ratio so that there would be one senator and one member of the House of Representatives from each of the government and the Opposition, with the remaining members able to be drawn from either House of Parliament. The purpose of this proposed change is to provide more flexibility to ensure the PJCIS has the most qualified membership. However, the Bill would not require any cross-bench representation. Australian Greens senator Nick McKim stated in the second reading debate that the Greens would move an amendment requiring a senator who is not from the government or the Opposition to be one of the eleven members of the PJCIS.[113]

Amongst other changes, the Bill would also require the IGIS to provide the PJCIS with copies of its inquiry reports within three months of giving them to the Prime Minister or responsible minister, and to add the INSLM and the National Security Adviser (in the Department of the Prime Minister and Cabinet) to the list of office-holders from whom the PJCIS can request a briefing.

2017 Independent Intelligence Review

The most recent independent review of the AIC agencies was completed in June 2017, with a public version of the report released in July 2017.[114] The report recommended several changes relating to oversight of Australia’s intelligence agencies.

The reviewers assessed that ‘the intelligence enterprise that supports Australia’s national security is no longer limited to the six AIC agencies’ and considered that a more appropriate frame of reference would be a ‘National Intelligence Community’ comprising the six AIC agencies, the Australian Criminal Intelligence Commission (ACIC), the Australian Transaction Reports and Analysis Centre (AUSTRAC), and parts of the AFP and the Department of Immigration and Border Protection (DIBP).[115] Accordingly, they recommended that the jurisdiction of both the PJCIS and the IGIS be expanded to include AUSTRAC in its entirety and the intelligence functions of the AFP, ACIC and the DIBP.[116]

The reviewers also recommended that the:

PJCIS be given the ability to request that the IGIS conduct an inquiry into the legality and propriety of particular operational activities of any of the ten above-mentioned agencies and report to the PJCIS, the Prime Minister and the responsible minister (in line with the powers of the New Zealand ISC)

PJCIS be given the ability to initiate its own inquiries into the administration and expenditure of the ten above-mentioned agencies

PJCIS be empowered to request briefings from the INSLM and refer matters to the INSLM for report

IGIS and the Director-General of the proposed Office of National Intelligence be required to provide regular briefings to the PJCIS and

IGIS’s resources should be significantly increased from 17 to around 50 full-time staff.[117]

While not a recommendation of the review, on the same day the report was released, the Prime Minister also announced the creation of a new Home Affairs portfolio (modelled broadly on the UK Home Office) that will bring together Australia’s immigration, border protection, law enforcement and domestic security agencies under a single portfolio.[118]

A task force led by the Department of the Prime Minister and Cabinet will consider the recommendations of the independent review and then manage in tandem the implementation of those that are adopted and the establishment of the Home Affairs portfolio.[119]

Canada

Overview of intelligence agencies

The Government of Canada’s intelligence-related activities and structures span many organisations, some of which are listed in two locations:

Schedule 3 of the Security of Canada Information Sharing Act, which identifies 17 different federal institutions that acquire, analyse and share information for the purpose of protecting Canada against activities that undermine its security and

Canada’s 2013 national counter-terrorism strategy, which lists 21 departments and agencies with counter-terrorism responsibilities.[120]

Given that intelligence is created and consumed for purposes other than national security, it is likely that these two lists fail to capture the entire Canadian security and intelligence community.

Canada’s core intelligence collection agencies comprise the following:[121]

Communications Security Establishment (CSE), which is Canada’s foreign signals intelligence agency. CSE’s workforce stands at roughly 2,000 employees.[122] Operating as a separate agency under the Department of National Defence (DND), CSE is mandated under subsection 273.64(1) of the National Defence Act to: acquire and use information from the global information infrastructure to provide foreign intelligence provide advice, guidance and services to protect electronic information and information infrastructure of importance to the Government of Canada and provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.[123]



To shield itself from liability under Part VI of the Criminal Code, which prohibits unauthorised interception of private communications, CSE seeks authorisation from the Minister of National Defence to undertake foreign intelligence collection and cyber defence activities where there is an unavoidable risk of such interception. These ministerial authorisations have effect for no more than a year and come with a set of conditions that CSE is expected to satisfy.

Canadian Security Intelligence Service (CSIS), which provides intelligence on threats to the security of Canada using primarily, but by no means exclusively, human sources. With a workforce of over 3,200, CSIS is part of the Public Safety Canada (PSC) portfolio and is mandated under section 12 of the Canadian Security Intelligence Service Act (CSIS Act).[124] To use certain intrusive investigative techniques, CSIS is required under section 21 of the CSIS Act to obtain a warrant from the Federal Court, which has designated a group of judges to examine CSIS applications in ex parte (from one party) and in camera (closed) hearings.[125] In 2015, under two separate bills, the CSIS Act was amended to, among other things, give the Federal Court jurisdiction to issue warrants enabling the Service to use intrusive measures on overseas operations and to authorise CSIS to engage in threat reduction activities.[126]

Canadian Forces Intelligence Command (CFINTCOM), which uses a full range of collection methods to provide defence intelligence to the Canadian Armed Forces and DND.[127] CFINTCOM receives its direction from the Chief of Defence Intelligence, whose authority derives from the National Defence Act. Most, but not all, of CFINTCOM’s intelligence collection targets are foreign and, thus, most of its collection and information-sharing activities are conducted under Crown prerogative.[128] CFINTCOM’s counter-intelligence activities can, however, entail collection of information on Canadians. At present, DND relies on internal accountability mechanisms to ensure that CFINTCOM’s counter-intelligence activities are lawful and comply with departmental policies and regulations. However, some elements of external accountability may be put in place under proposed legislation that is discussed below.

Royal Canadian Mounted Police (RCMP), which, as Canada’s federal law enforcement agency, is responsible under the Security Offences Act to conduct criminal investigation of security offences, such as facilitation of or engagement in terrorism or espionage.[129] The RCMP—which is also contracted to provide police services in every province and territory in Canada, save Ontario and Quebec—derives its mandate from the Royal Canadian Mounted Police Act (RCMP Act).[130] Its workforce stands at around 6,500.[131]

Oversight summary

While the ministers of public safety and national defence are responsible for activities that take place within their respective portfolios, the Prime Minister is ultimately accountable to Parliament on national security matters. The Prime Minister thus chairs the Cabinet Committee on Intelligence and Emergency Management.[132]

The National Security and Intelligence Advisor to the Prime Minister (NSIA) serves as the Prime Minister’s eyes and ears on security and intelligence issues.[133] The NSIA also coordinates the federal security and intelligence community but must rely on suasion alone to do so, as he or she is an appointee with no statutory authority. Assisted by a deputy NSIA, the NSIA oversees the Privy Council Office’s Intelligence Assessment Secretariat and its Security and Intelligence Secretariat.[134]

At present, the executive branch relies on three expert review bodies to investigate complaints and examine the lawfulness of the activities of Canada’s intelligence and national security agencies (discussed in greater detail below):

the Security Intelligence Review Committee (SIRC)

the Office of the Communications Security Establishment Commissioner (OCSEC) and

the Civilian Review and Complaints Commission for the RCMP (CRCC).

Each of these review bodies has been established by statute. Though each claims independence, all three are required by law to submit their annual reports to responsible ministers,[135] and all are subject to executive branch direction or constraint.[136] Ministers must table unclassified versions of these annual reports in each House of Parliament during the first 15 days on which that house is sitting after the day they are received.

None of the intelligence and national security agencies is required to provide an annual report to Parliament. CSIS does, nonetheless, prepare public reports. However, the timing of these reports varies, and the organisation’s most recent report covers a two-year time frame. The content of these reports has shrunk in size over time and often focuses on broad generalities.

The primary parliamentary reporting obligation for federal departments and agencies takes the form of budget documentation.[137] Federal organisations request parliamentary approval to spend funds through the estimates process and outline their funding needs in main and supplementary estimates. In order to provide parliamentarians with more detailed information about what they intend to achieve with the resources provided to them, departments and agencies prepare departmental plans. When the fiscal year is complete, they explain in departmental performance reports how much was spent and what was achieved.

However, neither CSIS nor CSE prepare departmental plans and performance reports. Instead, parliamentarians are provided high-level financial information, as outlined in main and supplementary estimates. Thus, other than what they can glean through questioning officials in public committee hearings, parliamentarians have no information about these agencies’ plans, activities or results, despite the significant funds being provided to them. When, during the year through supplementary estimates, these agencies request additional funds—which can be substantial—little or no explanation is provided. Without additional information, it is very difficult for parliamentarians to provide effective financial oversight of these organisations.

On 22 June 2017, Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts (hereafter, the National Security and Intelligence Committee of Parliamentarians Act or NSICPA), received Royal Assent.[138] Having come into force on 6 October 2017, the NSICPA will create another executive review body—the National Security and Intelligence Committee of Parliamentarians (NSICOP)—which will report to the Prime Minister.[139] NSICOP members will have access to classified information, including legal opinions, but will also be permanently bound to secrecy.

Some have expressed disappointment with the NSICPA, arguing that by creating a committee of parliamentarians rather than a parliamentary committee, it will only bring Canada in line with where the UK was in 2012, when that country’s Intelligence and Security Committee was still part of the executive branch. In Canada, the notion of a parliamentary review committee permitted to hear and view classified information has been raised in numerous commissions of inquiry, starting with the 1969 Mackenzie Commission, which examined the state of Canada’s security system in the aftermath of a series of Soviet spy scandals.[140]

Since neither the Senate nor the House of Commons has committees whose members are authorised to access classified information, Canada’s legislature is unable to comprehensively review national security and intelligence activities. Instead, the legislative branch relies on a number of ‘officers of Parliament’ who can, if necessary, gain access to certain classified information and facilities relevant to each officer’s mandate. Appointed by orders in council, these officers undertake statutorily assigned review work and report their findings to Parliament.[141] Although officers of Parliament may work at the classified level, the reports they submit to Parliament and any subsequent parliamentary testimony they provide must be unclassified.

Neither the Senate nor the House of Commons has established a standing committee whose sole remit is to examine questions of national security. Instead, the Standing Senate Committee on National Security and Defence and the House of Commons Standing Committee on Public Safety and National Security treat national security issues as part of a broader menu of potential study topics. Given their respectively broad remits, these two committees generally address national security matters, including intelligence, in an episodic manner.[142]

The provisions in the NSICPA directing the Senate and the House of Commons to refer NSICOP annual and special reports to these two committees for study will mean Parliament pays more routine attention to national security. However, unless these committees’ mandates are narrowed down, there are no guarantees that NSICOP reports will be subject to in-depth examination and debate.

From time to time, special parliamentary committees have been struck to dive deeper into national security policy. An example of this is the Special Senate Committee on the Anti-terrorism Act, which was created in 2004 as part of the mandated review of anti-terrorism laws passed in 2001. However, the committee was dissolved in 2013.[143]

Executive oversight

Security Intelligence Review Committee

SIRC was created in 1984 under the CSIS Act.[144] SIRC comprises a chair plus not fewer than two and not more than four members. Committee members are all privy councillors appointed by the Governor in Council after consultation by the Prime Minister with the leaders of the opposition parties. SIRC meets approximately nine times a year to set priorities and review the work of its staff. Under subsection 39(2) of the CSIS Act, SIRC has unfettered access to all information under the control of CSIS, save Cabinet confidences.

An executive director oversees the day-to-day operations of SIRC staff. In the 2017–2018 federal budget, SIRC received just under C$1.9 million in ‘strategic funding’ (i.e. temporary funding) until 2019–2020, which SIRC says it will use to increase to 24.5 its current complement of 13.7 full‑time‑equivalent staff positions used for lawfulness review work and the investigation of complaints.[145] Since this funding is temporary, SIRC says it is being forced to rely on short-term staffing options, such as secondments, to fill these positions and that this is causing the organisation to experience major human resources challenges.

Until the position of Inspector General of CSIS was eliminated in June 2012, the Minister of Public Safety and Emergency Preparedness, CSIS’s responsible minister, relied on the incumbent to provide annual certification that the Service’s operations and activities adhered to the minister’s policies and directives. SIRC has now assumed the Inspector General’s duties.[146]

Excluding non-permanent funds, SIRC’s total annual budget now stands at around C$2.8 million.[147] By contrast, CSIS’s annual budget is approximately C$577 million.[148]

Office of the CSE Commissioner

OCSEC was created in June 1996 under an order in council.[149] Until the National Defence Act was amended in 2001 to codify CSE and OCSEC authorities and duties, both CSE and OCSEC operated under orders in council.[150]

OCSEC is headed by a supernumerary judge who is appointed by the Governor in Council and mandated under subsection 273.63(2) of the National Defence Act to investigate and respond to public complaints and to review CSE activities for lawfulness. If the CSE Commissioner believes CSE has engaged in unlawful activities, he or she must immediately inform the Minister of National Defence and the Attorney-General of Canada. Drawing from authorities provided under Part II of the Inquiries Act, the CSE Commissioner has unfettered access to CSE information—with the exception of Cabinet confidences—facilities and staff. Under subsection 273.65(8) of the National Defence Act, the CSE Commissioner must review CSE activities carried out under ministerial authorisation and confirm, in an annual report to the Minister of National Defence, whether these activities were authorised.[151]

Subsection 273.63(3) of the National Defence Act states:

The Commissioner shall, within 90 days after the end of each fiscal year, submit an annual report to the Minister on the Commissioner’s activities and findings, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.

The CSE Commissioner serves in a part-time basis only but is supported by a small full-time staff of 11.5 (including the executive director), of which 8.5 full-time equivalent positions are held by the subject matter experts who conduct review work.[152] Total annual funding for OCSEC stands at C$2.1 million, of which C$1.6 million is used for review work. In its 2017–2018 departmental plan, OCSEC indicated that it intends to request additional permanent funding to hire one additional review staff member and modernise its ‘technology assets’.[153] By contrast, CSE’s total annual budget stands at C$596 million.[154]

Civilian Review and Complaints Commission for the RCMP

The CRCC was created in 2014 through legislation amending the RCMP Act.[155] Under this Act, the CRCC is mandated to review complaints made by the public about the on-duty conduct of RCMP members. It also has authority to initiate public interest reviews of RCMP activities but must provide a rationale to the Minister of Public Safety and Emergency Preparedness prior to doing so.[156] The CRCC has 67 full-time-equivalent employees, of which 45 are used to conduct investigations. Its total annual budget stands at just under C$10 million, with C$7.3 million of this total being used for review activities.[157] By contrast, the RCMP’s total annual budget stands at roughly C$3.4 billion.[158]

Parliamentary oversight

Canada’s national security and intelligence agencies are subject to oversight by several officers of Parliament. As a result, the committees that consider the reports of these officers may also examine the activities of national security and intelligence agencies. For example, the House of Commons Standing Public Accounts Committee examines the reports of the Auditor General of Canada who, from time to time, investigates the management of national security programs.

Similarly, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) examines the reports of the Privacy Commissioner of Canada and the Information Commissioner of Canada, whose work increasingly implicates national security and intelligence agencies, all of which are subject to the Privacy Act and the Access to Information Act. In connection with its recent study of the aforementioned Security of Canada Information Sharing Act, ETHI has also taken testimony directly from implicated departments and agencies, as well as from the three expert review bodies.

While spreading parliamentary review of national security and intelligence activities over multiple committees has the benefit of bringing many ‘fresh eyes’ to examine issues, it also has the downside of reducing the ability of individual parliamentarians to build subject matter expertise. Examining the national security enterprise at an unclassified level and through a narrow lens has challenged the ability of parliamentarians to study its issues in a truly comprehensive fashion.

Only by formulating policy issues within a strategic construct—for example, identifying Canada’s intelligence priorities and then routinely addressing the question of how well national capabilities align with this need—can these committees develop the necessary insights and expertise to hold national security and intelligence agencies to account.

However, the Standing Senate Committee on National Security and Defence and the House of Commons Standing Committee on Public Safety and National Security have the potential to develop expertise because they are specifically mandated to examine national security matters. These two committees are considered below.

Standing Senate Committee on National Security and Defence (SECD)

The Senate created SECD on 15 March 2001, mandating it to examine ‘matters relating to national defence and security generally, including veterans affairs’.[159] Prior to this time, the Senate had only examined national security and intelligence issues in the context of special committees, such as the Senate Committee on Intelligence, which convened in 1987, 1988 and then again in 1999 to examine anti-terrorism activities. The Senate Committee on Intelligence was notable in that its chair attempted to elicit candid responses from agency officials by taking their testimony in camera.

Though SECD’s specific orders of reference can change from session to session, this committee has interpreted its broad mandate as permitting examination of: DND/Canadian Armed Forces and PSC capabilities; working relationships between various agencies involved in intelligence-gathering and analysis; intelligence agency review mechanisms; and the security of borders and critical infrastructure.[160]

SECD works at the unclassified level. Under Rule 12-9-2 of The Rules of the Senate, SECD is empowered to send for persons, papers and records.[161]

House of Commons Standing Committee on Public Safety and National Security (SECU)

Until SECU was created by the passing of a motion amending the House of Commons Standing Orders on 5 April 2006, issues involving public safety and national security had been referred to the then House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, or its subcommittees. As per Standing Order 104 of the Standing Orders of the House of Commons, SECU comprises ten members.[162] At present, six SECU members, including the chair, come from the governing party—the Liberal Party of Canada—and four come from the two opposing parties (three from the Conservative Party of Canada and one from the New Democratic Party of Canada). SECU’s chair and two vice-chairs (one from each opposition party) are elected by committee members.

Standing Order 108 mandates standing committees and empowers them to examine and inquire into all matters referred to them by the House of Commons and to report to the House.[163] As a standing committee, SECU is authorised to send for persons, papers and records, and to delegate all or any of its powers to subcommittees. It may meet while the House of Commons is in session and during adjournment periods. SECU can also sit jointly with other standing committees.

Working at the unclassified level, SECU is mandated to examine the policies and activities of one of the largest departmental portfolios—Public Safety Canada (PSC)—including the close to 140 statutes this department and its agencies administer. Specifically, SECU is mandated to examine the policies, programs and statutes of PSC, Canada Border Services Agency, CSIS, Correctional Service Canada, Parole Board of Canada, RCMP, SIRC, CRCC, Office of the Correctional Investigator, and the RCMP External Review Committee.[164]

Thus, and as alluded to above, SECU examines national security issues, but only as part of a broader menu of items that includes matters related to criminal law, corrections and conditional release of federal offenders, border security, policing and law enforcement, crime prevention and emergency management.

SECU recently examined and reported on the National Security and Intelligence Committee of Parliamentarians Act (NSICPA) and on the government’s consultation paper on national security. Under the House of Commons Standing Orders, if a committee chair requests a response to a report, the government is required to provide one within 120 days of the report being presented.

Recent developments and reform proposals

National Security and Intelligence Committee of Parliamentarians

As noted above, on 22 June 2017, Canada’s Parliament passed the NSICPA, under which a National Security and Intelligence Committee of Parliamentarians (NSICOP) will be created to examine national security and intelligence issues. Subsection 8(1) mandates the NSICOP to review:

a) the legislative, regulatory, policy, administrative and financial framework for national security and intelligence; (b) any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; and (c) any matter relating to national security or intelligence that a minister of the Crown refers to the Committee.

Under the new legislation, after consultation with specified leaders in the Senate and the House of Commons, NSICOP members will be selected by and report to the Prime Minister. On 8 January 2016, six months before the legislation was tabled in the House of Commons, the Prime Minister appointed Member of Parliament David McGuinty to take a ‘leadership position’ on the committee and permitted national security and intelligence agencies to brief Mr McGuinty on issues of concern.[165] As a condition of their participation in the NSICOP, all members will be permanently bound to secrecy. Because the NSICOP will not be a parliamentary committee, its members will not enjoy parliamentary privilege, including with respect to any unauthorised disclosures they might make during the course of their other work in Parliament.

The eleven-member NSICOP will comprise currently-serving parliamentarians who are not serving ministers or parliamentary secretaries. Up to three members of the committee could come from the Senate, with up to five of the remaining eight members coming from the governing party in the House of Commons. The chair will only be permitted to vote in the event of a tie.

In many respects, the scope of the NSICOP’s remit will be determined by its ability to access required information. For example, the original text of the legislation would have effectively eliminated the NSICOP’s ability to examine defence intelligence activities by prohibiting access to ‘information pertaining to ongoing defence intelligence activities supporting ongoing military operations, including the nature and content of plans in support of these military operations’. This language was removed from the legislation, as was language that would have prohibited any form of direct scrutiny of the Financial Transactions and Reports Analysis Centre (FINTRAC), Canada’s financial intelligence agency. The Act enables the NSICOP to access FINTRAC strategic analyses or any other information FINTRAC has not disclosed and that does not reveal the identities of individuals or entities.

Under the NSICPA, committee members will be automatically denied access to Cabinet confidences, information that provides the names of current or intended confidential human sources, and information pertaining to an ongoing law enforcement investigation that may lead to a prosecution. Significant constraints will also be placed on the committee’s access to certain types of information, particularly special operational information. However, if a minister were to invoke the provision to deny the NSICOP access to information to which it would otherwise be entitled and which is under the control of a department (section 16), he or she will have to inform the committee of this decision and provide reasons for it. In instances where the denied information is controlled by CSIS, CSE or the RCMP, the appropriate minister will also be required to inform the agency’s expert review body and provide reasons for his or her decision. This is meant to ensure that the NSICOP cannot circumvent the minister’s denial of access by approaching any of the expert review bodies. The NSICPA seeks to limit ministers’ use of this authority by requiring the NSICOP to provide in its annual reports a tally of access denial decisions made under section 16.

Focusing primarily on questions of efficacy, the NSICOP will examine the policies, administration and activities of the national security and intelligence community as a whole. Generally, its reviews of national security activities would be ex post (after the fact), but the NSICPA holds out the possibility that a minister might permit examination of ongoing operational activities.[166]

The NSICOP will be supported by a small secretariat staffed and run by an appointed executive director who will have deputy minister status.[167] Very little public information is available on the expected resourcing of the NSICOP’s secretariat. However, based on a table included in the annex of the federal government’s Fall 2016 Economic Statement, it appears that the secretariat will have an annual budget of around C$3.2 million, enough to pay the salaries of the executive director, internal services staff, and three or four research staff.[168]

Other developments

The adoption of the NSICPA is just one in a series of recent changes to the authorities and governance framework of the Canadian security and intelligence community. Some of the more controversial changes took place under Bill C-51—an omnibus anti-terrorism law passed in June 2015 that provided new ‘threat reduction’ authorities to CSIS, enhanced the Public Safety minister’s ability to deny disclosure of national security information used in security certificates issued under Division 9 of the Immigration and Refugee Protection Act, and greatly expanded information-sharing among departments and agencies with national security responsibilities.[169] The current government, which came to power in October 2015, campaigned on a pledge to roll back ‘problematic’ provisions of Bill C-51, which it aims to do through the 20 June 2017 tabling of Bill C-59, An Act respecting national security matters.[170]

If enacted, Bill C-59 will introduce profound changes to the bodies that currently scrutinise national security and intelligence agencies. For example, Bill C-59 would effectively consolidate OCSEC and SIRC into a single body, the National Security and Intelligence Review Agency (NSIRA). The CRCC would continue to exist, but all of its national security-related work would be transferred to the NSIRA. Beyond reviewing the activities of CSIS and CSE, the NSIRA would be required (under clause 8) to review ‘any matter that relates to national security or intelligence that a minister of the Crown refers to the Agency’. This means that the scope of the NSIRA’s remit would mirror that of the NSICOP. Finally, the NSIRA would be mandated not only to examine the lawfulness of national security and intelligence activities but also their reasonableness and necessity, thus creating an additional mechanism to trigger legislative and regulatory change.

Bill C-59 would also create an Intelligence Commissioner, a retired judge who would be mandated to examine the reasonableness of conclusions leading to ministerial authorisations for certain types of CSE activities and ministerial determinations regarding CSIS’s collection, retention, querying and exploitation of datasets. Unlike the NSIRA, which would be a review body, the Intelligence Commissioner would have an oversight role, putting a stop to or amending planned activities before they happen.

At the same time, Bill C-59 would grant significant new powers to Canada’s intelligence agencies. For example, the CSIS Act would be amended to create a regime enabling CSIS to collect and use datasets on Canadians, so long as these datasets were ‘relevant’ to the performance of CSIS duties. These amendments to the CSIS Act appear to respond to a 2016 Federal Court decision in which CSIS was reprimanded for having failed in its duty of candour to the Court regarding its practice of collecting and retaining metadata on Canadians not under investigation.[171]

CSE would also gain significant new powers. Under Bill C-59’s proposed enabling mandate, the Communications Security Establishment Act, CSE will be permitted to engage in ‘active cyber operations’ targeting foreign individuals, states, organisations or terrorist groups. CSE would also be empowered to provide technical and operational support to offensive cyber operations conducted in the context of military missions. Heretofore, Canada’s military has not been permitted to engage in cyber operations of this nature.

Finally, CSE would also be authorised to provide advice and services to protect critical information infrastructure, including infrastructure owned and operated by the private sector and systems and networks used by parliamentarians and the federal courts.

New Zealand

Overview of intelligence agencies

New Zealand has two intelligence and security agencies. The New Zealand Security Intelligence Service (NZSIS) specialises in human intelligence activities. The Government Communications Security Bureau (GCSB) specialises in signals intelligence and information assurance and cybersecurity activities.[172]

The functions of each agency are to:

collect and analyse intelligence in accordance with the Government’s priorities

provide any intelligence collected and analysis of it to the minister responsible for the agency (the responsible minister), the Chief Executive of the Department of the Prime Minister and Cabinet and any other persons (whether in New Zealand or overseas) authorised by the responsible minister

provide protective security services, advice and assistance to public authorities and other authorised persons (whether in New Zealand or overseas)

provide, in the case of the GCSB, information assurance and cybersecurity activities to public authorities and other authorised persons (whether in New Zealand or overseas), and to do everything necessary or desirable to protect the security and integrity of communications and information infrastructures of importance to the Government

cooperate with the other intelligence and security agency, and to cooperate with, and provide advice and assistance to, the New Zealand Police and the New Zealand Defence Force and

cooperate with, and provide advice and assistance to, any entity that is responding to an imminent threat to the life or safety of: any person in New Zealand any New Zealand citizen or permanent resident who is overseas any person in an area in respect of which New Zealand has search and rescue responsibilities under international law or any person outside the territorial jurisdiction of any country.[173]



The agencies must act in accordance with New Zealand law and in a manner that facilitates democratic oversight.[174]

In addition to the NZSIS and the GCSB, the third core agency of the New Zealand Intelligence Community is the National Assessments Bureau within the Department of the Prime Minister and Cabinet. The New Zealand Defence Force also has intelligence capabilities and a range of other government departments and agencies, notably New Zealand Police, the New Zealand Customs Service and Immigration New Zealand, have intelligence units.[175]

Recent developments

The Intelligence and Security Act 2017 received Royal Assent on 28 March 2017. The Act, which replaces the four acts that previously applied to the intelligence and security agencies and their oversight bodies, implements the Government’s response to the recent independent review of intelligence and security.[176]

An amendment to the New Zealand Security Intelligence Committee Act 1996 in 2013 introduced a requirement for a review of the intelligence and security agencies to be carried out every five to seven years.[177] The report of the first periodic review to be undertaken was published in February 2016.[178] Among the review’s terms of reference was a requirement to determine whether the current oversight arrangements provided sufficient safeguards at an operational, judicial and political level to ensure the agencies acted lawfully and maintained public confidence.[179]

The review proposed that the intelligence and security agencies, their oversight bodies and potentially also intelligence assessment should be covered by a single piece of legislation. The legislation would include a new comprehensive authorisation regime requiring some level of authorisation for all of the agencies’ intelligence and security activities that involve gathering information about individuals or organisations, proportionate to the level of intrusion involved. It would also make some changes to facilitate greater oversight of the agencies and accountability for their activities.[180]

Among the review’s recommendations relating to oversight were:

the agencies should be integrated within the public sector; they should be subject to the State Sector Act 1988, with any appropriate exceptions and exemptions

higher levels of scrutiny should apply to authorisations of agency activities that are more intrusive or target New Zealanders

the Inspector-General of Intelligence and Security (IGIS) should be appointed by the Governor-General on the recommendation of the House of Representatives, rather than on the Prime Minister’s recommendation

the Office of the IGIS should be funded through an appropriation separate from that of the agencies

the functions and powers of the IGIS should be enhanced: the category of people able to make a complaint should be broadened to include non-New Zealanders. the review of authorisations should not just relate to procedural matters but should include a comprehensive look behind the face of the authorisation. the restriction on inquiring into operationally sensitive matters should be removed.

the maximum size of the Intelligence and Security Committee should be increased to allow for greater flexibility in representation

the Committee should be able to elect its own chairperson, who would not necessarily be the Prime Minister and

the Committee should be able to request, but not require, the IGIS to carry out an inquiry, including into operationally sensitive matters.[181]

The Intelligence and Security Act 2017 adopted most, but not all, of the review’s recommendations.[182]

Some sections of the Act came into force on 1 April 2017. The remainder of the Act came into force on 28 September 2017.[183]

Oversight summary

The intelligence and security agencies operate within a framework of executive, parliamentary, independent and judicial oversight. The Prime Minister, as Minister for National Security and Intelligence, is responsible for leading the national security system. The responsible minister for each agency exercises ministerial oversight within the framework set by the Prime Minister.[184] A responsible minister has sole responsibility for issuing some intelligence warrants and joint responsibility with a Commissioner of Intelligence Warrants, who is a former judge, for issuing others. Parliamentary scrutiny of the agencies’ policies, administration and expenditure is undertaken by the Intelligence and Security Committee (ISC). The IGIS provides independent oversight of the agencies to ensure that they act with propriety and operate lawfully and effectively.

The NZSIS and the GCSB are departments of State.[185] Their Directors-General are appointed, have their performance reviewed, and may be dismissed by the State Services Commissioner in accordance with the State Sector Act 1988.[186] Each agency must present to its responsible minister an annual report containing the information required of departments by the Public Finance Act 1989 and the additional information on its activities required by the Intelligence and Security Act 2017. The minister must give a copy of the report to the ISC, and also present a copy, from which some information may be excluded, to Parliament. The report presented to Parliament must be published on the agency’s internet site.[187]

Parliamentary oversight

Intelligence and Security Committee

The Intelligence and Security Committee was established by the Intelligence and Security Committee Act 1996. Previously, parliamentary scrutiny of the intelligence and security agencies had been undertaken by the Government Administration select committee.[188] The intention in establishing a statutory committee was to increase parliamentary oversight of the agencies while remaining sensitive to considerations of national security.[189] Parliament has retained its power to inquire into the agencies, but it is the House’s practice to make a sessional order for each Parliament that no select committee can examine an intelligence and security agency.[190]

The Intelligence and Security Act 2017 increases the interaction between the ISC and the IGIS. The ISC is now able to request the IGIS to conduct an inquiry into the agencies’ compliance with the law or the propriety of their activities. It also now considers and discusses with the IGIS his or her annual report.[191]

Functions

The functions of the ISC are to:

examine the intelligence and security agencies’ policies, administration and expenditure

receive and consider the agencies’ annual reports

conduct, following receipt of each agency’s annual report, an annual review of the agency for the immediately preceding financial year

consider any Bill, petition or other matter in relation to an agency, referred to it by the House

request the IGIS to conduct an inquiry into: any matter relating to an agency’s compliance with New Zealand law, including human rights law and the propriety of particular activities of an agency.

consider any matter, which is not directly related to an agency’s activities, that is referred to it by the Prime Minister because of the matter’s intelligence or security implications and

consider and discuss with the IGIS his or her annual report.

The ISC’s functions do not include:

inquiring into any matter within the jurisdiction of the IGIS

inquiring into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods, or sources of information or

inquiring into complaints by individuals concerning the activities of an agency that are capable of being resolved under any other enactment.

A review of the intelligence and security agencies must be conducted every five to seven years. Before the Prime Minister appoints the reviewers or specifies the terms of reference, he or she must consult the ISC. On completion of their report the reviewers must provide it to the ISC which, having considered the report and excluded any information that cannot be disclosed, will present it to the House.

Powers and performance of functions

The Director-General of an intelligence and security agency must appear before the ISC if requested by it to do so. The ISC may request any other person to attend and give evidence before it, or to produce any document or other information that is relevant to its proceedings.

Anyone asked by the ISC to disclose to it any document or other information in his or her possession must either do so, or inform the ISC that the document or information cannot be disclosed because the Director-General of the relevant agency considers it to be sensitive information, as defined by the Intelligence and Security Act 2017. The disclosure of sensitive information is not precluded in cases where the Director-General of the relevant agency considers disclosure to be safe. Sensitive documents or information must be disclosed to the ISC if the Prime Minister considers that disclosure is desirable in the public interest.

The ISC’s proceedings are proceedings in Parliament for the purposes of Article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The ISC’s meetings must be convened by the chairperson. Proceedings must be conducted in accordance with the rules and practice of the House of Representatives. The ISC meets in private unless it is conducting an annual financial review, or unless it unanimously resolves otherwise.

The ISC must, having regard generally to security requirements, present an annual report on its activities to Parliament. The House may require the ISC to provide it with a copy of any or all records, including reports, evidence and advice to the ISC, that are held by the ISC in relation to the performance of the first four of its functions as set out above. Before providing a copy of any record to the House, the ISC must remove any information that it is restricted from disclosing to the House.

The ISC must not disclose in a report to Parliament:

any information that, if publicly disclosed, would be likely to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence: by the government of any other country or any agency of such a government or by an international organisation.

any information that, if publicly disclosed, would be likely to endanger the safety of any person or

any sensitive information disclosed to the ISC.

Unless it considers that there are compelling reasons in the public interest to do so, the ISC must not disclose in a report to Parliament:

the identity of any person who is or has been an officer, employee or agent of an intelligence and security agency, other than the Director-General, or any information from which the identity of such a person could reasonably be inferred or

any information that, if publicly disclosed, would be likely to: prejudice an agency’s continued performance of its functions or prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand.



Composition and appointment

The ISC must comprise between five and seven members—the number is determined by the Prime Minister in consultation with the Leader of the Opposition. The membership of the ISC must comprise:

the Prime Minister

the Leader of the Opposition

members of Parliament nominated by the Leader of the Opposition, with the agreement of the Prime Minister, after consultation with the leader of each party that is not in government or in coalition with a Government party and

members of Parliament nominated by the Prime Minister after consultation with the leader of each party in government.

If the ISC has five members, one member must be nominated by the Leader of the Opposition and two by the Prime Minister. If it has six or seven members, two members must be nominated by the Leader of the Opposition and the balance by the Prime Minister. In making their nominations the Leader of the Opposition and the Prime Minister must have regard to security requirements and the proportional representation of political parties in Parliament. When performing the ISC’s functions, a member of the ISC acts in his or her official capacity as a member of Parliament.

The names of nominees must be presented by the Prime Minister to the House for its endorsement. If the House declines to endorse a nomination, the Prime Minister must present the name of another member, nominated by the Leader of the Opposition or the Prime Minister as the case requires, for endorsement.

The ISC is chaired by the Prime Minister, or another member of the ISC from time to time appointed by the Prime Minister.

Resourcing

The ISC is assisted in the conduct of its business by officers appointed by the Chief Executive of the Department of the Prime Minister and Cabinet with the ISC’s concurrence.

Independent oversight

Inspector-General of Intelligence and Security

The Inspector-General of Intelligence and Security is an independent statutory office. It is not subject to general direction from a minister responsible for an intelligence and security agency, the Prime Minister or other ministers on how its responsibilities should be carried out. The IGIS oversees the NZSIS and the GCSB. The exercise by other agencies (e.g. the National Assessments Bureau, the intelligence services of the New Zealand Defence Force, and the intelligence units of Immigration New Zealand, the New Zealand Customs Service and the New Zealand Police) of their intelligence and security functions does not fall within the IGIS’s jurisdiction.[192]

The office of Inspector-General of Intelligence and Security was established by the Inspector-General of Intelligence and Security Act 1996. The new office replaced the office of Commissioner of Security Appeals, whose function had been to inquire into complaints regarding the NZSIS. The jurisdiction of the new office was extended to cover the GCSB and the conduct of inquiries and reviews became part of its functions. Until 2013 the office was required to be held by a former High Court judge, who carried out the role on a part-time basis.[193]

Changes were made in 2013 to strengthen the IGIS’s role. Provision was made for the appointment of a Deputy Inspector-General of Intelligence and Security and staffing was increased. An advisory panel was established to provide advice to the IGIS, who no longer had to be a former judge.[194] The Intelligence and Security Act 2017 removes the restriction on inquiries by the IGIS into operationally sensitive matters and clarifies that he or she may review warrants on substantive as well as procedural grounds.[195]

Functions

The functions of the IGIS are to:

conduct, at the request of the responsible minister, or the ISC, or on the IGIS’s own initiative, an inquiry into: any matter relating to an intelligence and security agency’s compliance with New Zealand law, including human rights law or any matter where it appears that a New Zealand person has been or may be adversely affected by an act, omission, practice, policy or procedure of an agency.

conduct, at the request of the Prime Minister, the responsible minister, or the ISC, or on the IGIS’s own initiative, an inquiry into the propriety of particular activities of an agency

deal with complaints about an agency made by: a New Zealand person an employee, or former employee, of an agency, if all established internal remedies have been exhausted or the Director-General of the relevant agency agrees in writing 