Blunder blocks spy agency’s eyes

For six months in 2017 the NZ Security Intelligence Service was unable to get visual surveillance warrants, which allow New Zealand’s spies to use video surveillance tools to watch terrorism suspects in their cars, homes or workplaces.

Former minister in charge of SIS Chris Finlayson said the legal blunder was the fault of the spy agency or DPMC, not himself, and if there had been a terrorist attack during that time, it would have been the fault of the security officials who he believed failed to spot the issue.

In a briefing to the minister on June 30, 2017, SIS director-general of security Rebecca Kitteridge told Finlayson about the gap in the law, which meant from April 1, 2017 to September 28, 2017, the agency did not have the power to seek or be granted a visual surveillance warrant.

As part of the Countering Foreign Fighters legislation, amendments were made to the SIS Act in 2014.

The amendments allowed the agency to apply for visual surveillance warrants to detect, investigate or prevent a terrorist act, and for urgent authorisations granted by the director-general.

But this amendment had a sunset clause, which came into effect on April 1, 2017. So until the Intelligence and Security Act took effect on September 28, 2017, the SIS was left without that tool.

A second briefing to the former minister on July 6, 2017 said the oversight arose through the Cabinet recommendations and drafting instructions, it was not a drafting error.

Department of the Prime Minister and Cabinet deputy chief executive of security and intelligence Howard Broad said the oversight occurred during the development of the bill and was not picked up by DPMC or the agencies during its passage.

Yesterday, Finlayson said he went through the amendments ‘‘clause-by-clause’’ with the SIS and it was up to them to raise any gaps, which they did not, meaning the responsibility lay with the agency.

On the bottom of the June 30 briefing paper Finlayson made it clear he would not change the law in order to plug the gap.

‘‘You will not be seeking a legislative solution AT ALL. Don’t even bother asking. This should have been covered in the transitional provision.’’

While Kitteridge did not ask for the minister to rush through any legislation to fix the problem – as he had received criticism for doing in the past – Finlayson said he believed the briefing was a ‘‘pre-cursor’’ to the SIS asking him to make legislative changes.

‘‘I wanted to make it clear beyond any doubt that if they were thinking along those lines they should think again... it was never explicitly asked, but these things never are,’’ he said.

‘‘I made it very clear to them that I wasn’t going to be pushing through any urgent legislation... the media had criticised me and the Government in 2011 and 2013 when intelligence legislation was dealt with under urgency, and I was determined while I was minister there was going to be no repeat performance of that.’’

Finlayson said he did not believe New Zealanders were put in danger because of the legal blunder.

But when asked who would have been at fault if a terrorist attack happened on New Zealand soil during that period, he replied: ‘‘they would have been’’.

Yesterday, Kitteridge said the situation was ‘‘by no means ideal’’.

‘‘But we did have other tools in our toolbox. We were pleased when the new law came into force on 28th September 2017.’’

Kitteridge said terrorism continued to be an ‘‘obvious threat’’, and the SIS continued to focus on keeping Kiwis safe.