The security agency watchdog warned the SIS in 2017 not to overstate its powers to people they interview and to inform them of their rights, at a time when Muslims were saying the spy agency was infringing their rights.
Inspector-General of Intelligence and Security Cheryl Gwyn. Photo: RNZ
The Inspector-General of Intelligence and Security (IGIS) identified a host of deficiencies with SIS interviews in her 2017 inquiry, but the domestic spy agency appears to have balked at fixing some of them.
In a statement to RNZ, Inspector-General Cheryl Gwyn said there remained "further scope for improvement in the information that the [SIS] service makes available to members of the community about their rights".
Muslims have argued they have been excessively surveilled and had their rights breached, while white supremacists and other far right groups appear to have largely escaped scrutiny.
Now, along with New Zealand's other security agency the GCSB, the SIS is set to be investigated by a Royal Commission of Inquiry after they failed to prevent the Christchurch terror attacks on two mosques.
Ms Gwyn said she had addressed these concerns in her warnings report that was made public - but attracted little media attention - in December 2017.
"The warnings report found that service [SIS] officers must offer better and clearer information to people with whom it interacts concerning their rights and the service's own powers," she told RNZ.
"It must do nothing that misrepresents the scope of the service's powers. It also said that the service must afford natural justice to interviewees in situations where the 'interview' might affect their rights."
The law makes clear the SIS must not do anything that leads people to believe it has any power at all to tell them what to do, and is forbidden from using warnings that people might think were a means of enforcement.
The public often did not know this, so there was potential for "error or misunderstanding" by the public or agents, Ms Gwyn's 2017 report said.
Her inquiry also showed agents had been infringing on people's rights. They had largely made their own calls about how to issue warnings to people, despite that being a complex legal area for the agency.
"There is a very fine line between NZSIS offering a legitimate warning about a person's behaviour and an illegitimate warning, and the distinction will turn on all the details of the particular circumstances," Ms Gwyn said.
Agents often were not giving people a written information sheet on their rights, let alone a translated one.
"In many cases youth and language difficulties will be relevant factors," the IGIS report said.
Ms Gwyn found the SIS had kept few records of warnings and had very little policy around it.
"It was surprising that there were not documented procedures or accessible records of individual operations, not least for the purpose of internal and external accountability," she reported.
The spy agency agreed this was not good enough.
The Muslim community had told Human Rights Foundation researchers that the two crucial matters for them were that the SIS must be clear about their rights, and clear too about its own responsibilities and accountability.
However, the spy agency did not take kindly to all of the Inspector-General's 14 recommendations, set out across 12 close-packed pages.
On the key matter of starting interviews by providing a written information sheet about interviewees' rights, which they could keep, the SIS said it would not do this for everyone unless it was executing a warrant.
It also did not want to keep interviews in which someone might be given a warning entirely separate from executing a warrant against them.
"I am not satisfied," Ms Gwyn wrote.
Despite this and other pushback, the IGIS summed it up yesterday for RNZ saying the SIS "substantially accepted my many recommendations".
Ms Gwyn said the Human Rights Foundation had told her many of the issues it raised had been addressed in the report.
However, young Muslim men have also told the foundation they were asked by the SIS to have informal chats, felt pressured to spy on their mosques, and felt they could not refuse.
"Our people are becoming spies on our own people," the foundation's report quoted one individual as saying.
Ms Gwyn's inquiry only covered interviews where agents issued people with overt warnings, not informal chats if no warnings followed. RNZ has asked this be clarified.
NZSIS's tactics in holding informal chats and "undeclared interviews" - and any use of information from these - remained unaddressed, the foundation said, despite the IGIS warnings report saying provision of a full information sheet in any interview would "go a long way to reduce the risk of the recipient misunderstanding the advice and the NZSIS's role".
The Human Rights Foundation also insisted it had been led to believe the SIS did not have any power to issue any warnings to anyone.
"Intelligence officers have no power to issue warnings to you or anyone else," a pamphlet it circulated to the Muslim community said.
The foundation's Peter Hosking said multiple government agencies - including Police and Customs - signed off on this pamphlet and SIS was certainly aware it said this about its powers.
Ms Gwyn cites the pamphlet, even though it contradicts her finding that the SIS can give people warnings.
- Read the full IGIS warnings report:
- The Human Rights Foundation pamphlet circulated to Muslim communities:
- The ministerial policy statement on lawful collection of information:
- The HRF's letter to Attorney-General David Parker