Section 235 of the Intelligence and Security Act 2017 (the Act) requires periodic reviews of the Act and the intelligence and security agencies. The review has been brought forward to commence as soon as practicable from July 2021 to respond to the issues raised in the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain (the RCOI report) that relate to the Act.
The first periodic review of the relevant legislation and intelligence agencies was conducted by Sir Michael Cullen and Dame Patsy Reddy in 2016 (the Cullen-Reddy review). The Cullen-Reddy review was a fundamental review that resulted in substantial changes to the legislative framework. The 2022 review is not intended to replicate the scope of the 2016 review, or be a first principles review of the Act. The intent of this review is to understand what improvements need to be made, if any, so that the Act is clear, effective, and fit for purpose, as well as considering the relevant matters raised by the RCOI report.
1. The purpose of this periodic statutory review is to:
1.1. determine whether improvements could be made to the Intelligence and Security Act 2017 (the Act) to ensure it continues to be effective, clear and fit for purpose;
1.2. consider the recommendations and issues related to the Act that were raised in the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain (RCOI).
2. The review will have particular regard to the following matters:
2.1. whether the Act appropriately balances national, community and individual security with individual privacy and other rights;
2.2. whether the Act sufficiently enables and controls target discovery activity by the intelligence and security agencies;
2.3. whether the authorisation framework under the Act can be improved to better serve the purpose of the Act;
2.4. whether the Act adequately provides, and has appropriate protections and oversight in place, for the collection of intelligence by both intelligence and security agencies. In particular the processing, analysis, retention and destruction of collected information/data;
2.5. how the Act may best enable the intelligence and security agencies to appropriately and effectively cooperate and share information with New Zealand government agencies and other partners;
2.6. any other matters that arise during the course of the review, as agreed by the Prime Minister and notified in writing in the New Zealand Gazette.
3. When determining how to conduct the review, the reviewers will take into account:
3.1. the principles agreed by Cabinet to guide the RCOI response;
3.2. that the review should be underpinned by te Tiriti o Waitangi and its principles;
3.3. that the review should enhance trust and confidence in the intelligence and security agencies;
3.4. the need for the law to provide clear and understandable parameters of operation;
3.5. that the establishment of a new national intelligence and security agency (recommendation 2 of the RCOI) is being considered by DPMC as part of a review of the overarching national security policy settings and the reviewers will need to be cognisant of that work as it develops;
3.6. that the structure and current separation of the intelligence and security agencies will be considered as part of DPMC’s work on the overarching national security policy settings.
4. How the review is conducted
The review will need to meet communities’ expectations of transparency as far as possible, and a wide range of members of the public should have the opportunity to express their views on issues relating to the review.
A special advisor has been made available to the reviewers to assist with the review.
A report with recommendations should be delivered to the Intelligence and Security Committee no later than 30 September 2022.
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