Abstract:
The New Zealand Security Intelligence Service (SIS) plays an important role in keeping New Zealand safe from acts of terrorism. This thesis undertakes an analysis of the powers and accountability of this organisation through the rubric of the tort of negligence. In particular, it examines the possibility of the SIS being liable for failing negligently to protect a victim of a terrorist attack. This thesis begins by examining whether a negligence action against the SIS by a victim of terrorism will raise issues that are suitable for judicial adjudication and suggests that it will. The bulk of this thesis is concerned with whether the SIS may owe a duty of care to a victim of a terrorist attack. It suggests that the current requirement for a public authority to exercise control over the immediate wrongdoer - the terrorist - should be modified and that sufficient proximity may exist between the SIS and a victim of terrorism. Two policy considerations that may tell against a duty of care are then examined. The first is the conflict of duties concern. Imposing a duty of care on the SIS to gather intelligence will be inappropriate because the secretive nature of the organisation means that a duty may be inconsistent with "rule of law" considerations. However, it will not prevent the imposition of a duty to pass on relevant intelligence. The second policy consideration is the availability of alternative remedies. The Intelligence and Security Committee, the Inspector-General of Intelligence and Security and the ombudsmen do not constitute adequate alternative remedies, and their availability does not demonstrate a parliamentary intention to preclude a negligence action against the SIS. The SIS may, therefore, owe a duty of care to a victim of a terrorist attack to take reasonable steps to use intelligence in such a way as to prevent that victim being harmed. Issues raised by the requirement that the plaintiff must demonstrate a breach of duty and causation are considered, but neither of these elements raises an insurmountable hurdle to the claim.