Minister of spies Andrew Little has backed the intelligence agencies' oversight body as it raised questions about the legal basis relied on by the GCSB to carry out electronic surveillance operations which captured New Zealanders' communications.
The questions were raised by the Inspector General of Intelligence and Security Cheryl Gwyn, who had told the Government Communications Security Bureau it should be seeking high-level sign off when it knows its spying activities will capture Kiwi data.
The GCSB disagrees and says instead it only needs to seek the highest authorisation when it is deliberately targeting New Zealanders - not when it scoops up Kiwi data as a byproduct of its surveillance activities.
The disagreement has emerged in Gwyn's review of the first nine months of warrants granted under the new Intelligence and Security Act, passed last year.
• Spies 'unlawfully' accessed data - oversight body
• Exclusive: Our spies disarmed by legal blunder amid 'high threat operations'
• How the GCSB collects data about Kiwis in the Pacific - and why it's legal
• New oversight report critical of spies and highlights legal 'gap' in GCSB practices
The new law gave greater powers to the spy agencies, including being able to electronically harvest communications belonging to New Zealanders in cases of national security.
Prior to the new law, the communications and data of New Zealand residents and citizens had been protected from such spying.
To balance the new powers, the law demanded greater disclosure as to why powers were being used and higher levels of sign off for GCSB when it scooped up information belonging to New Zealanders.
For most cases, a Type 2 warrant is sufficient which requires only Little's signature to approve spying operations.
When it involves communications belonging to New Zealanders, the law requires the "triple lock" Type 1 warrant authorisation of Little, a senior judge and an audit by the Inspector-General.
Little said it was reasonable for the GCSB to seek - as it currently has - advice from the Solicitor General as to whether its interpretation of the law was correct.
But he said he had impressed upon the intelligence agencies the authority of the Inspector-General's office, which was beefed up under the new law.
"I've had cause to say that the IGIS is the critical check and balance on the exercise of powers by the agencies and her view is going to carry great weight."
"If Crown Law can't settle on a view or a very definite view then the IGIS is going to have to prevail because they are the oversight body and they are the check and the balance."
Little said he had personally pushed back on "Type 2" warrants to ensure it was the most appropriate form of authorisation. "Part of my role is to probe and question."
"If New Zealanders are going to have their privacy interfered with in more than an incidental way, or there is a possibility New Zealanders are going to be caught up in an area of activity they are going to go after, there would have to be a Type 1 warrant."
Gwyn's report said the GCSB should be seeking a Type 1 warrant when it knew it was likely to incidentally pick up New Zealanders' communications.
"The Bureau's approach creates a gap, in my opinion, in the legal authorisation of its activities," she wrote.
Other issues raised by the Inspector General were the lack of detail in warrant applications from the GCSB and NZSIS. There was also concern at the cross-referencing in warrant applications to other warrants, including those which did not yet exist.
GCSB Director-General Andrew Hampton said work was ongoing to interpret, apply and implement" the new law.
On the incidental collection of New Zealanders' information without a warrant, Hampton said the GCSB believed it was operating inside the law.
"As the Inspector-General states in her report, the GCSB's reasoning is carefully thought through and articulated," said Hampton.
He said the GCSB had sought a definitive view from Crown Law, the Government's legal advisers, and "will share it with the Inspector-General once it is ready".
David Fisher is a member of a Reference Group set up by the Inspector General of Intelligence and Security to hear views on developments possibly relevant to the work of the oversight office. The group has a one-way function in offering views to the IGIS and receives no classified or special information.