Proposed sections 15 – 20 (clauses 13 – 19) 46. Consistent with the comments above in relation to proposed section 14, this section addresses the changes to Part 3 of the GCSB Act addressing interception of communications and accessing of “information infrastructures”. 47. Proposed sections 15B(1) and 16(1A)(b) either mandate the involvement of the Commissioner of Security Warrants or limit GCSB interceptions without warrant or authorisation, in relation to the interception of private communications of New Zealand citizens or permanent residents. For the reasons advanced above, the Law Society recommends that the protections proposed by means of these provisions should be more extensive. 48. The Law Society recommends that the power to intercept without the need for an interception warrant or access or authorisation should be made expressly subject to section 14. That is to say, proposed section 16(2)(a) should refer to section 14(1) as well as to section 15(1). 49. Indeed, the section 16 power to intercept without warrant or authorisation can no longer be justified, given the greatly expanded scope of this warrantless power (having regard to the expansive definition of “information infrastructure” and the expanded scope of operations beyond “foreign intelligence”, canvassed above so that domestic as well as foreign intelligence is to be targeted by the GCSB). This power must now be considered as overly invasive of NZBORA rights, and/or as a disproportionate conferral of power, given the available alternatives (including the range of powers of interception already possessed by the New Zealand Security Intelligence Service and others). 50. Given the uncertainty at this stage about the changes that may be made to legislation in this area, it is recommended that the Inspector-General of Intelligence and Security consider whether current warrant requirements are sufficient to protect against potential abuse of power, as part of an operational review of the GCSB post-legislative amendment.
Posted on: Wed, 10 Jul 2013 08:49:45 +0000
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