Snowden inspires New Zealand 'protected disclosure' policy

The Inspector-General of Intelligence and Security, Cheryl Gwyn, says the NSA experience demonstrates that protected disclosure is critical.
Written by Rob O'Neill, Contributor

The smallest member of the Five Eyes spying alliance is rolling out a "protected disclosures" policy to enable would-be Edward Snowdens to safely blow the whistle on suspected wrongdoing by security agencies.

New Zealand's Inspector-General of Intelligence and Security, Cheryl Gwyn, said a formal internal policy for handling protected disclosures, or "whistleblowing", has been developed by her office in liaison with security agencies.

"The Edward Snowden disclosures demonstrate how critical it is to have a clear path, with appropriate protections, for disclosing information about suspected wrongdoing within an intelligence and security agency," she said.

Edward Snowden has consistently said it was impossible for him to make internal disclosures about what he believed was wrongdoing due to the lack of whistleblower protections he faced in the USA.

The Inspector-General, who released her second annual report (PDF) today, is independent from the intelligence and security agencies and is not subject to direction by Government ministers.

"It's important that intelligence and security matters are open to scrutiny," Gwyn said. "Consistent with that intention this report sets out my Office's work over the last year in as much detail as possible."

She has powers to initiate inquiries into any matter that relates to the compliance by the NZSIS or the GCSB with New Zealand law or into the propriety of their activities. This includes the ability to access premises and documents and to require the appearance of witnesses under oath.

The Office of the Inspector-General's role was expanded in late 2013 after incidents of illegal surveillance, including that of Kim Dotcom, emerged.

NSA whistleblower Edward Snowden
The report says no protected disclosures had been made to the Inspector General under a 2000 whistleblower protection law and the Office of the Inspector-General has not had a formal policy for dealing with such disclosures.

The new policy includes: how protected disclosures are to be handled by Inspector General staff; how an employee of the NZSIS or GCSB may make a protected disclosure; what constitutes a protected disclosure; the definition of "employee"; what confidentiality assurances the Inspector-General can provide; and the protections afforded to "whistleblowers" and their limits.

Gwyn said that the Annual Report will be supplemented by more detailed reports on specific inquiries as these are completed, but already further shortcomings are emerging.

Gwyn noted that the SIS did not provide copies of visual surveillance warrants as required, prompting the Green Party to call for its powers to be curbed and for further oversight by a Parliamentary Select Committee.

"The SIS was given extra powers of video surveillance which it has used twice, and both times have been found to have broken the law. At the very least, these new powers have to go," said Green Party co-leader James Shaw.

"Of particular concern, is the IGIS's finding that the SIS still does not have sound compliance procedures systems in place," Shaw said.

However, the report says SIS has now instituted appropriate arrangements to provide copies of warrants on the day of issue or on the next working day.

Gwyn also released her office's work programme.

She said she expects to provide assistance to a legislative review of intelligence and security agencies now under way.

"I am particularly interested in whether any proposed policies and legislative changes that may arise place sufficient weight on maintaining the privacy of individuals, and whether proposals reflect the concept of proportionality - that is, that the means used by the intelligence and security agencies for obtaining information must be proportionate to the gravity of the interests at risk," she said.

"It must be convincingly demonstrated that the present powers of the agencies are insufficient before considering whether to extend those powers."

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