If Gwyn gets the answers, she might find that the public interest and the national interest are not the same thing and she might have to choose. Photo / Mark Mitchell
If Gwyn gets the answers, she might find that the public interest and the national interest are not the same thing and she might have to choose. Photo / Mark Mitchell
Opinion by Audrey Young
Audrey Young, Senior Political Correspondent at the New Zealand Herald based at Parliament, specialises in writing about politics and power.
Robust intelligence-services inquiry a credit to inspector- general’s office but finding answers offers challenges.
Anyone raised on Perry Mason knows there is a golden rule for lawyers - never ask a question in a public courtroom if you don't already know the answer.
Cheryl Gwyn, the Inspector-General of Intelligence and Security, was once a courtroom lawyer and rose to the ranks of Deputy Solicitor-General.
In that capacity, she accompanied Attorney-General Chris Finlayson to the International Court of Justice to put New Zealand's case against whaling in the Southern Ocean.
She was short-listed for the job to replace her former boss David Collins when he moved to the bench, but fortunately she was passed over.
I say "fortunately" because if she got that job, she might still be trotting up to courts on behalf of the Crown to ask questions to which she knew the answer.
Instead, as inspector-general, she is acting on behalf of the public, posing all sorts of questions about the conduct of the intelligence services, the sorts of questions the public want to know, the answers to which she is obliged to share with the public.
The public interest is served by the way Gwyn has built her office, boosted in powers and resources, it must be said, from law changes passed at the same time as the controversial GCSB modernising law in 2013.
Former Crown Law colleague Ben Keith has filled the new post of Deputy Inspector-General of Intelligence and Security.
The son of noted jurist Sir Kenneth Keith, he won a reputation at Crown Law for the ability to stand up to power through his dealings over the deeply flawed Electoral Finance Bill.
The bill was introduced by Labour as its response to the Exclusive Brethren secretly funding attack campaigns at the 2005 election but it placed chilling constraints on individuals and organisations to fund or support political parties.
The legend goes that after Labour drafted the bill and sent it off to Crown Law for a Bill of Rights Act vet, the task fell to Ben Keith, who gave it a fail.
The message came back from the Beehive that that answer was not the answer that ministers wanted, but he refused to budge and the task was transferred to another staffer.
Coincidentally, while the deeply flawed bill was in the hands of the Justice Minister, the Attorney-General in charge of Crown Law at the time was Sir Michael Cullen, who is now steering the review of the intelligence agencies with Dame Patsy Reddy.
The appointment of Sir Michael as lead reviewer, it hardly needs saying, is a way to rebuild bipartisanship between National and Labour on intelligence issues.
Former Deputy Prime Minister Michael Cullen. Photo / Christine Cornege
He is not National's toady and he is not Labour's stooge. Few others would have better qualifications in terms of experience as a former Deputy Prime Minister (meaning former Acting Prime Minister) and of capability for the review.
But clearly his greatest appeal to National is his great appeal to Labour, which still endures beyond politics.
After briefing the statutory Intelligence and Security Committee this week on the progress of the review, Cullen retired to the Labour offices of Parliament to catch up with old colleagues, and no one was bothered. He is trusted.
The real test of that confidence exercise is yet to come when the review and its major reforms are released next year.
The review itself and setting new policy direction are not strictly Gwyn's concerns, as she acknowledged in her annual report, but she in the next breath becomes the diligent busybody with a list of things she will be looking for when the recommendations come out (such as the concept of proportionality, accountability and oversight, propriety, and human rights).
That is no criticism. The biggest factor in rebuilding the confidence of the intelligence agencies in the past 18 months has been the inspector-general and her office and the questions they have asked.
So far they have included questions about whether the SIS colluded with the Prime Minister's office over Official Act Information releases to embarrass Labour MP Phil Goff.
The subsequent report exposed serious misjudgments by the ex-SIS director Warren Tucker who, if not already retired, would almost certainly have been forced to resign.
And while Gwyn was criticised at the time for not interviewing the PM for the inquiry, her annual report this week says she searched "in significant depth the electronic and physical records of the NZSIS and Prime Minister's office" for the inquiry under new inspector-general search powers exercised in accordance with the Speaker.
So just to be clear: her first inquiry included searching computers in the Prime Minister's Office.
She has also decided to look at how NZ's spooks decide what to spy on, on the back of its help for the (unsuccessful) bid by Trade Minister Tim Groser to become Director-General of the World Trade Organisation.
Many of us may think it was an excellent objective, but agree or not, who wouldn't like to know how these activities actually begin? With Cabinet, a Cabinet committee, the Foreign Minister, the Prime Minister alone or at the initiative of the GCSB or something else altogether.
Having asked the question, Gwyn is obliged to answer it.
She is also looking at whether "full take" surveillance in the Pacific referred to in secret US documents taken by National Security Agency analyst Edward Snowden meant a full sweep and mass surveillance, as he claimed, or, as has been suggested by others, it referred to full surveillance of individuals legally targeted.
Former intelligence contractor Edward Snowden. Photo / Getty Images
This week's annual report reveals another highly significant own-motion inquiry: into whether New Zealand intelligence agencies had any engagement with or knowledge of the CIA detention and interrogation programme from 2001-2009 - commonly known as extraordinary rendition at "black sites".
It does not sound like a fishing expedition. Gwyn hints there may have been Kiwis working with Five Eyes intelligence partners and been uncomfortable at being exposed to details about rendition, and invites anyone with knowledge to come forward.
Getting to the bottom of such questions will increase public trust in her. But in this case, providing answers may be more of a challenge, especially to the spy agencies, which cherish their intelligence alliances.
If Gwyn gets the answers, she might find that the public interest and the national interest are not the same thing and she might have to choose.
