3.15The working relationship between the Police and the security agencies has evolved over many years. Section 8C of the Government Communications Security Bureau Act 2003 provides that one of the functions of the Government Communications Security Bureau is to co-operate with, and provide advice and assistance to the Police. Section 4H of the New Zealand Security Intelligence Service Act 1969 provides that for the purpose of preventing or detecting serious crime in New Zealand or any other country the Director of Security may communicate material that comes into the possession of the Security Intelligence Service to the Police or to any other persons, and in any manner, that the Director thinks fit.
3.16There is an inherent dilemma. Security agencies have a mandate to gather information, and must protect their information-gathering capabilities, while the Police have a mandate to investigate and prosecute offences. It is in the public interest that security agencies tell the Police if they have information that suggests there is a threat to public safety. Security agencies may seek to protect their information through using classified information to generate unclassified information that is then passed to the Police, or selective declassifying of information that does not by itself pose a security risk if disclosed. They may also seek a commitment by the Police to protect the national security information that they do receive by withholding it under the available statutory provisions if a prosecution is brought.
3.17One issue that creates a concern for both the Police and security agencies is the use of national security information as grounds for obtaining a warrant. For example, security agencies may have information obtained through covert surveillance that indicates an individual is planning to commit an offence. This information may be sufficient grounds for a Police warrant, which would then be used to obtain further evidence, but the agencies may be concerned that the covert information could enter the public domain if the warrant is later challenged and may therefore be hesitant about passing it on.
3.18It is common for some passages in warrants to be redacted. The concern of security agencies is that this might not be sufficient. One option might be to provide a mechanism so that the grounds for issuing a warrant may be supressed if disclosure would create a national security risk.
Q1 How should national security information be protected when used as grounds for a warrant?