CCTV in inner city Auckland Photo: RNZ / Cole Eastham-Farrelly
The spy watchdog has warned the New Zealand Special Intelligence Service (NZSIS) has too much leeway to decide who it places under "highly intrusive" surveillance.
Inspector-General of Intelligence and Security Brendan Horsley has released a report detailing a relatively new approach the spy agency has taken towards obtaining "class" warrants, allowing them to spy on anyone who fits within a broad criteria.
He analysed the three warrants issued to the NZSIS in 2022 and 2023 for surveillance of suspected terrorists and violent extremists.
Before the law was changed in 2017, the NZSIS was required to seek individual warrants to place people under close surveillance, which meant any decision to place a specific person under surveillance would be signed off by "external authorities".
The Intelligence and Security Act however allowed the agency to use its most intrusive techniques against anyone fitting the class definition.
Horsley said he was concerned the new approach gave the agency too much discretion to target individuals "under maximum surveillance without anyone outside the NZSIS having seen the case for it".
"Using class warrants to avoid individual applications might be convenient but in my view it is not a proper application of the warrant regime," he said.
His report said there was nothing to suggest the NZSIS had inappropriately targeted its surveillance under the class warrants, and "the Service appears to have been reasonably cautious in its work under the warrants".
"The issue is not who is being targeted under these warrants, but who decides."
His report said the first two warrants, in his view, did not meet the Act's requirements for "necessity and proportionality".
The NZSIS disagreed and had advice from Crown Law - the government's legal office - showing that while some of the definitions were too broad, "some were sufficiently certain".
Crown Law also said the warrants could be changed to meet the legal tests, and Horsley said the third version of the warrant was "an improvement and follows the advice of Crown Law".
"It can reasonably be argued to fit within the provisions of the ISA."
But regardless of whether the warrants met the tests under the law, the NZSIS should never have applied for the warrants as a matter of policy, he said.
"In my view there should be a preference for individual warrants, all other things being equal, as this provides for better oversight of the Service's activities, greater protection of individual rights and a greater safeguard against agency overreach. This is predominately a policy issue and is under consideration as part of the ongoing review of the ISA."
He said the number of people targeted by the class warrants was small enough that individual warrants would still be practical.