Government Communications Security Bureau Bill

In speaking to the title I point out that the word “Government” is appropriate, because this organisation is a Government institution, and this bill rectifies an error, a very bad practice in Government operations and accountability to this Parliament, because for 25 years this organisation has existed without a statutory foundation. So it is good that this matter is being rectified, but we have to look at the rest of the title—for instance, the words “Communications Security”—to see whether this organisation is justified; whether we really need it. The bill does provide one purpose that is quite positive, and that is acting as an agency to make sure Government communications are secure. However, in my opinion that could best be carried out by a subdivision of the New Zealand Police. The main functions of the Government Communications Security Bureau are purposes—and these are the most expensive ones—that we should not identify with. When we talk about communications security, the main facility of the Government Communications Security Bureau is the Waihopai satellite communications interception station near Blenheim. That has two dishes directed towards two satellites over the equator in the Pacific, which draws down all of the telephones, faxes, and emails that go through those two communications satellites. There is a network of such satellites around the equator. We are concerned through Waihopai with just these two over the Pacific. All those communications are drawn down into those two dishes, and run through a huge bank of computers in Waihopai and in Wellington.

The CHAIRPERSON (Hon Clem Simich): Would the member please return to the title at this stage?

Yes, I am just explaining that the term “Communications Security” does not really apply. This information is then primarily conveyed overseas, first and foremost to a foreign organisation, the United States National Security Agency. It is not really communication security, because communications of only five nations remain secure in this system—that is, the five Anglo nations: New Zealand, Australia, Great Britain, the United States, and Canada. All the other countries in the world are being spied upon through this system by what is called the Echelon system.

We see a problem of communications security for other countries. We saw a memo from a section head of the United States National Security Agency recently. A chap called Frank Coza talked about their agency, the National Security Agency, “mounting a search”—those were his words—on the members of the Security Council to try to get their votes. The Waihopai station, which is part of this system, is not protecting communications, as the title would imply; it is not protecting the security of communications for those Security Council members.

In fact, this agency may be used for purposes that we do not agree with. In question time today I raised the question of whether the communications security element of this agency is actually being turned on its head and being used against this country—because we do not support the war in Iraq. It is clear from US congressional documents that Waihopai has been used in what is called Operation Enduring Freedom in Afghanistan. If it can be used there by communications through Waihopai going off to the National Security Agency, then what is to stop them using it similarly in terms of getting electronic intelligence for their activities in Iraq? The question of sovereignty is very much relevant to that.

It is a privilege to speak on this bill in the Committee stage, and to follow the previous speaker, who decided that he would not confine himself to what is a very narrow debate on the title. He instead offered his wide-ranging perspectives on issues of Government security. In the short time that I have available in this debate I intend to focus on exactly the title. It seems to me that in any discussion about a title, one must be satisfied on two points. The first point is that the title is legally accurate, and the second point is that the title factually captures the content of the bill. I do not have an alternative title to suggest to the Committee. However, it is fair to say that some criticism could be directed at this title. If one looks at the contents of the bill, it can be seen that there are really two fundamental thrusts to it. There are, of course, four parts, but if one looks at the content of the legislation, one sees that essentially it is concerned with the organisation, the objectives, and the functions of the bureau, and that it sets up in that context a department of State. So it could be argued that the bill could be called the “Government Communications Security Bureau Establishment Bill”—that being a core part of this legislation. But that, of course, is only a part of it. That is really what Part 2 is concerned about.

Part 3 contains provisions that I guess the previous speaker would describe as draconian. Certainly, he would find them in his world ideologically offensive. Part 3 is concerned with the interception of communications and provides for warrants and computer access authorisation. There might be a case for the bill being called the “Government Communications Security Bureau Interception of Communications Bill”.

For those students who look at these issues and seek to access material on a quick and ready basis, such a title would certainly provide a key for that approach to the legislation. If one looks at the first test I suggested, which is concerned with the lawfulness of the title—the extent to which it is legally accurate—one cannot really quibble with this title. However, in a factual setting as to whether the title is all-encompassing, some criticism can be levelled. I hope the Minister will take a call and perhaps suggest what for him would be a more harmonious alternative. My sense of it is that he has not considered this issue, at all. He has not even considered it. That is a pity when time has been set aside by Parliament for a focus to be offered on this particular issue—that is, the title of the bill. That is all I wish to say in these opening comments on what will clearly be an extended Committee stage.

As my colleague Keith Locke said, the only good thing about this bill is that it confirms the existence of the Government Communications Security Bureau, but that is where its virtue ends. The first problem with this bill is that this has been the first opportunity for the New Zealand Parliament to debate it clause by clause. This is an extraordinary bill, because unlike most other legislation that comes before this Parliament, it was not referred to a parliamentary select committee. In fact, it would have been impossible for this bill to be referred to a parliamentary select committee, because of the existence of the Intelligence and Security Committee Act and the Intelligence and Security Committee. That is a creature of statute. In our view that should be abolished because the existence of that committee stopped this bill—

The CHAIRPERSON (Hon Clem Simich): We are discussing the title.

That is what I thought I was talking about—that is, the Government Communications Security Bureau Bill—that stopped this bill going to a parliamentary select committee. In fact, this bill should have a title along the lines of the “Government Communications Security Bureau (Mandated by the Statutory Select Committee and not by a Parliamentary Select Committee) Bill”. It has not had the scrutiny it deserves. I look forward to a decent debate on this bill. I hope the chairperson will allow a wide-ranging debate, given that this bill has not had the parliamentary scrutiny that legislation of this significance deserves. So I call upon his good offices to do that, because it is of real concern that a bill with this title should be dealt with by the Parliament without thorough scrutiny, particularly at this time of international crisis. There are very serious questions revolving round the mandate this bill gives to the Government, and I am worried that it allows the Government to proceed without being fulsome in its explanation of what the bill involves. Again, perhaps the title should more appropriately be along the lines of the “Government Communications Security Bureau (Secret Spying on Pacific Island Neighbours and Trading Partners) Bill”. That is one of the issues we should be able to address in considering this legislation, because we do not know the extent to which that sort of activity is taking place.

We were told in the briefing that the bureau is a member of a long-standing, collaborative, international partnership for the exchange of foreign intelligence, and the sharing of information systems security technology, but we do not know the extent to which our friends and neighbours are being spied upon. The advantage of the bill, as described by the Government Communications Security Bureau, is that it is a further step towards greater openness on the part of the Government in relation to intelligence and security matters. The bill’s title does not meet our expectations in that regard, and it should therefore be entitled the “Government Communications Security Bureau (Extension of the Surveillance State) Bill”, because that is exactly what it does. Another suitable title would be the “Government Communications Security Bureau (Insult to the Privacy of New Zealand Citizens) Bill”, because, again, we have no confidence that this legislation will give New Zealanders the security they deserve, or that it will not undermine their privacy as a result of legalising what are, in our view, the illegal activities carried out at the Waihopai spy base and the Tangimoana surveillance station. We look forward to a decent debate on this bill, given the fact that it is among the most unusual legislation to come before this Parliament, and that it has not been referred to a select committee, where parties like the Greens and ACT—was Mr Prebble on the Intelligence and Security Committee?

💬 Hon Richard Prebble: I was on it when this bill was going through.

Is the member not on the committee any more?

💬 Hon Richard Prebble: No. Winston Peters wanted to have a go.

The Government has consistently denied the Greens representation on the committee.

I rise to speak in favour of the proposal, and of the title of the bill. It is a sensible measure to put these proposals into legislation, partly because it makes it harder for those paranoid members of the community to continue in their fantasies. I object very strongly to suggestions that this bill has not had parliamentary scrutiny. The Intelligence and Security Committee is a parliamentary committee.

💬 Rod Donald: It is not a parliamentary select committee.

It may not be an ordinary select committee, but every single member of that committee is a member by statute, and the committee was voted for by the Parliament. I assure the Committee that we did meet all the people whom we said we met—it is mentioned on the front page of the bill that we had 16 submissions, and that we heard them in public. I can remember doing that. It is not very easy to get the Prime Minister, the Leader of the Opposition, the Minister of Finance, the then Deputy Prime Minister, Mr Anderton, and myself together for a meeting, but we did manage to do that.

💬 Richard Worth: Not a happy company.

We were a happy company on this particular matter. That is why this bill is appropriately named, because everyone except the Greens accepts that it is a function of the State to provide security to its citizens. I say to Mr Donald that, in an age of international terrorism, we need to know what those who think evil thoughts about this country and our security systems and trade are doing. One way of doing that is to electronically monitor them. If that comes as a source of shock and horror to the member, I tell him that it does occur, and that it is a function of the State. As a Parliament, we want to be sure that those powers are being exercised in a lawful way, and in a way that will protect New Zealand. The member has said that this bill is incorrectly named, to which I reply that it is most certainly correctly named.

In looking at clause 7, “Objective of Bureau”, I see that the security or defence of New Zealand is the No. 1 task. That is something every MP ought to be willing to support. The protection and advancement of the international relations of the Government of New Zealand is another objective, as is the protection of New Zealand’s international well-being or economic well-being. Clause 7(1)(ab) was added by members of the committee, and states that the Government is required to provide “foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and (b) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—(i) protect and enhance the security of their communications, information systems, and computer systems; or (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.”

I tell Mr Donald that one of the things this bill does is to stop foreign Governments from being able to tap into communications information that we have here. I make no apology for saying that the ACT party is in favour of this bill—and that includes ACT’s Solomon Islands representative. I do not know why we should make an exemption for the Solomon Islands, because if the Solomon Islands Government is able to tap into what is happening with New Zealand’s communications information, I will be very surprised. It would also come as something of a surprise to the Solomon Islands. However, we certainly have a great interest in the Pacific, and in the Solomon Islands. I suspect that this bureau will do the opposite of what the member expects, because it is far more likely that we will find information that may be of great interest and importance to the Solomon Islands Government.

That is one of the core functions of the State. It is the Government’s function to provide security, and it is for that reason that the ACT party is in favour of this bill. Right now, when we know there is international terrorism, and when threats are being made even in this country, I would have thought that even the Green Party would be very pleased that we have a Government Communications Security Bureau. I would have thought the Greens would be in favour of there being a general agreement in this House that this should be legislated. We ought to be prepared to tell the public about it. Am I pleased about, and proud of, this organisation and the staff who work for it? Yes, I am. I think the staff are patriotic New Zealanders, who are carrying out a very important job. I am pleased to support the bill.

I will make a quick contribution to this debate on the title of the bill. Since I came to the Committee at the start of the debate, I have been listening to the opposing views as to the process this bill has gone through. I have listened carefully to the Greens’ views about the bill not having gone to a select committee. Mr Prebble then put the view that a parliamentary committee, set up by statute, has enabled parliamentary scrutiny to occur on this bill.

If we go back to first principles, we should ask whether the title of the bill reflects its background and key features, which are set out on the commentary. It states that the key features of the bill include: “The establishment of the Government Communications Security Bureau as a department of State”. We heard my colleague Richard Worth moot that the title might be made more descriptive in nature by an amendment reflecting that that department of State is to be established. We will have to wait until the part-by-part voting to see whether Mr Worth puts forward an amendment to that effect.

Another key feature of this bill is to make sure that the title accurately reflects the objectives and functions of the Government Communications Security Bureau. I am not exactly sure how a title could do that in itself, but, interestingly, the next key feature is the regulation of the bureau’s functions with respect to the interception of communications. I jotted down some of Rod Donald’s alternative bill titles. He argued that it should be amended to read the “Mandated by Statutory Select Committee, Not Parliamentary Select Committee, Bill”.

💬 Rod Donald: Did I?

I think the member may have suggested that. The point is that the bill has been subject to the scrutiny of a parliamentary committee—and that is an important point to make. Mr Donald also offered the “Secret Spying on Pacific Island and Trading Partners Bill”—or words to that effect—as an alternative title.

Mr Prebble has quite rightly made the point that it cuts both ways with legislation like this; that, yes, some interference in privacy issues relating to domestic communications does occur—I will come back to that—but, more important, there is some regulation around the ability of sovereign foreign bodies to draw information out of the domestic communications market, as it were. I worry that Mr Donald views another proposed amendment to the title to be the “Extension of Surveillance Bill”, or the “Insult to the Privacy of New Zealand Citizens Bill”.

Interestingly, that does raise an interesting point. In effect, the bill tries to draw out the argument that, in this instance, issues relating to the public good, and in particular those matters that Mr Prebble raised—essentially the security of the New Zealand people—actually outweigh the rights of those individuals in our society to privacy in certain matters. There is no doubt that the New Zealand Bill of Rights Act confers privacy on individuals and their communications, and that is a view that should be respected across the board in New Zealand society. But every now and again, issues of greater good that are bigger than any privacy issues surrounding any one individual will occur, and this is one of those issues. That is why the Government Communications Security Bureau Bill is essential, why its title reflects the establishment of the bureau as a department of State, and why, in this case, that balance tips firmly in the favour of the public good and, in fact, of the security interests of New Zealanders, given these uncertain times that we live in. While we are dealing with the title, I also think it is worth drawing the Committee’s attention to the commentary on the bill.

Clause 1 agreed to.

Part 1 Preliminary provisions