Government Communications Security Bureau Bill

I would like to start by talking briefly about the commencement provision, as there was an alteration to it as the bill went through the Intelligence and Security Committee. The plan now is that the Act, other than section 32, comes into force on the day after the date on which the bill receives the royal assent. The drafters considered three possibilities when they looked at the commencement date. The first possibility was a date nominated by Order in Council. That was not chosen. The second possibility was a fixed date—some date in futurity, which could have been the commencement date. The third possibility, which has been seized on by the draftsman, relates to the date on which the bill receives the royal assent. On that date we are to see a very significant change, in the context of structural issues relating to a core element in the security services.

The Government Communications Security Bureau has been with us for a number of years, and the contribution that the bureau and the Security Intelligence Service make to this nation is absolutely undoubted. Since 1977 the bureau has provided the New Zealand Government with intelligence information from foreign signals derived from the interception of the communications of foreign Governments and other foreign entities. It strikes me as somewhat ironic that in these days of sophisticated electronic transmission of data, and electronic transmission of documents, the safest way for materials to be handled is probably by personal courier. That is why all around the world, personal couriers carrying top-secret materials are travelling long distances in aircraft, rather than those materials being entrusted to the electronic networks that exist throughout the world.

The bureau was set up without specific statutory authority. As I understand it, the director’s authority as chief executive of the bureau derives, but for this legislation, from an instruction that was issued by the Prime Minister. It was also the case that the bureau’s signals intelligence function and its role of ensuring the security of New Zealand Government communications and information systems were not formally defined. That adds substance to the point Mr Prebble offered—that for those who are deeply suspicious of Government activity, often in a quite irrational way, there is security in knowing that these activities are now to be statute-based and subject to a degree of statutory oversight that would not otherwise have been the case.

So before 1996, Parliament’s oversight of security intelligence—and I am speaking now of the three core elements in our security intelligence system: the External Assessments Bureau, the Security Intelligence Service, and the Government Communications Security Bureau—was basically left to the Prime Minister. Sure, there was some faint involvement by the Government Administration Committee, but it did not have any real control or power over the security intelligence agencies. So we had the situation that, by convention, secret briefings were given to the Prime Minister and the Leader of the Opposition, and together the Prime Minister and the Leader of the Opposition would certify each year that the agencies had met accountability rules and complied with the law. National introduced some key changes in 1996 after extensive public consultation. So it was that the Intelligence and Security Committee Act set up the Intelligence and Security Committee—a statutory committee with specific functions.

I am moving an amendment under this part so that we are not intercepting the communications of foreign diplomatic missions, because they get very upset if that is the case. The Green Party wrote to the missions, and one of them, the South African consulate, did reply, saying that it would take a very grim view of anyone violating its privacy by hacking into its computers. So I think we should support this amendment. Also, the definition of a foreign organisation is so broad that it could include all kinds of organisations, such as Greenpeace, voluntary organisations, and subsidiaries of overseas corporations. With the takeover of a lot our economy by Australian, British, and American firms, or whatever, a lot of our economic organisations would be foreign under this definition. New Zealanders working for them or representing them would be subject to spying, as would New Zealanders communicating with them. Also, it is, as my colleague Rod Donald said, an intrusion on the privacy of New Zealanders.

Sitting suspended from 6 p.m. to 7.30 p.m.

I am very pleased to take a call in the debate on Part 1 of the Government Communications Security Bureau Bill, a bill that the National Party in Opposition is supporting. I think this might also be an opportune time to reflect on my experience, as a member, of my first dealings with the Government Communications Security Bureau.

💬 Hon Richard Prebble: You don’t look like a subversive. What happened?

It was in those heady days of the early 1990s, when I was a member of the Government Administration Committee—which Mr Prebble, as he will recall, later joined.

A series of security and intelligence-related organisations, appeared before that select committee, which was made up of a number of new members: Christine Fletcher, myself, and a few other people. Some of those groups that came before the committee had a most intriguing presence. What was interesting was that they could appear before us, we could ask them questions, but they would never tell us anything—very much like Government departments under this Labour Government. I recall, for example, that a Mr Parker from the Government Communications Security Bureau came before us. But from the Security Intelligence Service, a person incredulously named Mr McIvor appeared before us. Later on, another officer of the Security Intelligence Service appeared before us—a Mr Smith—and we had our doubts about these individuals. But the point I raise is, I think, quite valid because it reflects how the whole of Parliament has developed its scrutiny function of all these security and intelligence-related organisations.

In the early 1990s, those bodies would come before the Government Administration Committee. There would be minimal financial data; it was a very simple input-output mode.

💬 Richard Worth: I raise a point of order, Mr Chairperson. Where is the Minister?

The CHAIRPERSON (H V Ross Robertson): The Minister is here. She has apologised. I call the Hon Tony Ryall.

💬 Richard Worth: I really think that the Hon Tony Ryall should start again because the proceedings to this point have been wholly irregular. It is just our good fortune that a Minister with significant knowledge of this bill has now joined us. What a tragedy it would be if someone who did not have that knowledge had joined us.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for drawing that to my attention. The situation, as I understand it, is that as long as there is a quorum in the Chamber and a Minister is in the Chamber, that is fine. The Minister has now taken her seat, and there the matter ends.

Parliament has taken greater powers to itself, in the ability to scrutinise those organisations. In the early 1990s there was minimal scrutiny of either their operation or their spending of public moneys. I can recall one situation where I think the Chairperson at the time, Christine Fletcher, sought to get an indication from one of the intelligence agencies as to some of its activities, to which the presenting officer merely smiled and gave those inimitable words: “You might very well think that, but I couldn’t possibly comment.”, or whatever the phrase of the television programme of the day was.

We have subsequently seen, over the years, Parliament form a special committee of its elders, chaired by the Prime Minister, which has provided much greater scrutiny than a parliamentary forum. Similarly, we have seen more information provided under the normal processes of financial review and the estimates process of these agencies. This bill is a further step in that, in providing departmental status for the Government Communications Security Bureau, and allowing Parliament to undertake its functions to assure the people of New Zealand that the various fundings provided to this agency are well spent.

What is most interesting to read in the commentary of the select committee is that it is quite clear that any bill of an intelligence nature attracts quite interesting submissioners—people who have quite a bent on conspiracy theories and seem to think that all the Government Communications Security Bureau ever does is listen in on New Zealanders’ telephone calls, which is, of course, expressly prohibited. The bureau is not allowed to listen in on New Zealanders. I think that what is important is that this bill proceed and that we have greater scrutiny of this agency. As members of Parliament, we rely on the Intelligence and Security Committee to examine these agencies to ensure that they are complying both legislatively and financially.

I will take a brief call on Part 1. As the member who preceded me said, this bill, which I think has significant support in the Chamber—certainly, it has support from United Future—changes the status of the Government Communications Security Bureau. It formalises it into a Government department for the purposes of enhancing its accountability.

I often think that when members of this House and members of the public become interested in matters of security and seek greater accountability for the security agencies, and that is subsequently achieved either through reports to the Intelligence and Security Committee or other discussions that take place, what becomes clear is how little we have to be secret about. We do not have an agency here of the capacity of the CIA or some of the great intelligence agencies of the world—that is not the size and scale of operation in New Zealand—but it is, none the less, a significant agency, and it is important to see its operations, its objectives, and its functions coded in a particular statute.

But I make the point that there will be those—I suspect it may be those whom the member who preceded me was referring to when he talked about the nature of the submissions that legislation of this type attracts—who will not be satisfied even with a legislative framework for the Government Communications Security Bureau, who will still feel that something sinister is going on, and who will still believe that various secrets are being purveyed to other nations at the expense of New Zealanders, and that, somehow, we have a right to know. I say to those people that they will never be satisfied by whatever legislative environment is put in place.

I guess that there is a sense of concern amongst a number of people about what is being collected about people, and about why people are being spied upon, or snooped upon, or whatever language one might want to use. There is a natural reaction in such circumstance to say: “We are a small country with very few secrets, therefore we do not need the services of an intelligence agency.” I would have thought that international events at this time and the climate that we have been living in over the last 2 or 3 years would indicate that one of the great protections we have in a free society is the fact that information that is relevant to the protection of freedom is gathered and passed on to the relevant authorities.

I am fascinated, as at the moment I happen to be reading Bob Woodward’s book about the Bush White House’s reaction to September 11 and the tragedy that befell the United States at that point. What becomes clear throughout that is the value of intelligence in determining a nation’s response. Members may well say that that is utterly irrelevant to the New Zealand context. It may well be, in terms of its scale, but the point remains the same. We do need to have information gathered about potentially damaging and subversive activities, we do need to have an ability to have that recorded in a way that is proper, and we need to have it dealt with accordingly by the relevant agencies.

I think there would be legitimate public outcry if our intelligence agencies were utterly unaccountable, were not treated the way that this bill seeks to treat the Government Communications Security Bureau, and were basically allowed to run their own show. But that should not lead people to assume that because we are going to have a more rigid and accountable regime, all the information that is gathered somehow now comes into the public domain. The very nature of intelligence services means that will never be the case, and there will need to be some protection, some security, and some secrecy. That is ultimately the protection for all of us. So this bill is a positive step forward. It will enhance accountability.

The member who preceded me spoke of an exchange that took place at the Government Administration Committee some time in the early 1990s and the mystery that seemed to be attached to that. My only direct dealing with the intelligence services was as a Minister of the Crown involved in a citizenship case. I was contacted by the Security Intelligence Service and asked to hold my decision relating to Mr X because further inquiries were still proceeding. Some months later, I was advised by the director that I could now make my decision because those inquiries had been completed. When I asked him the nature of the inquiries he told me that it was not my business but I was free to proceed, which I thought was a rather bizarre state of affairs, given that I had to decide on this particular person’s eligibility for New Zealand citizenship knowing that he had been investigated by the Security Intelligence Service, and that the service had found it unnecessary to proceed any further. I was none the less completely in the dark as to what the event was about.

Those stories may often occur, but the point I am making through that illustration is that the climate we are now moving into, where there is potentially greater accountability, will, I think, enhance the understanding of members of this House of the way in which our intelligence services operate, albeit that it may not satisfy them. It will also put the intelligence services on more notice about their accountability.

This part is significant. It contains the commencement, purpose, and interpretation clauses, and of course the standard clause “This Act binds the Crown”. I want to dwell on the commencement for a minute. Commencement is, of course, all about the timing of this legislation, and it is worth reminding the Committee that this bill was introduced under urgency on 8 May 2001. The Government was in a big hurry at that time and required a report back by 7 November 2001. The bill has, of course, languished on the Order Paper ever since. Now, more than 16 months later, we are finally holding the Committee stage of the debate.

I refer to the purpose of the bill. It is all about legitimising a Cabinet minute, because up until now the Government Communications Security Bureau has existed only because of a Cabinet minute. In fact, until a few years ago the Government was very keen to deny that such an organisation even existed. The purpose clause fails to acknowledge that the organisation was established under the five-nation agreement, a highly secret document that makes the Government Communications Security Bureau an outpost for American signals intelligence, along with Britain, Canada, and Australia. So it is remiss of the Government not to make clear in this purpose clause that the purpose of this legislation is to give some legislative backing to an organisation that is part of an international agreement that neither this House nor any of the other Houses involved have ever seen.

I move to the interpretation clause. We have a number of concerns here. One particular concern was highlighted by my colleague Keith Locke just before the dinner break and I would like to reinforce the point he made, because he has put up a very serious amendment. He is seeking to ensure that the Government Communications Security Bureau does not spy on the New Zealand diplomatic missions of other Governments. Right at this time that is a particularly apposite request, given the revelations that Waihopai has been used to spy on UN diplomatic missions in the lead-up to the non-decision by the Security Council to endorse an invasion of Iraq.

New Zealand needs to know absolutely clearly that the Government Communications Security Bureau does not have authorisation to spy on those other missions, not only for reasons of good international relations, but also because at the moment this Government Communications Security Bill is, in our view, contrary to the Vienna Convention on Consular Relations and Options Protocol of 1963, of which New Zealand is a member. That convention states clearly that the official correspondence of a consular post shall be inviolable. In our view, “correspondence” clearly means all communications, and this bill covers those communications.

We would seek a very straightforward and modest amendment, which we would like other parties to consider. It is simply to add to the definition of “foreign organisation” the words “but not the New Zealand diplomatic mission of any country”. Whether or not members support our stand on other issues, I hope they see the good sense in supporting that particular amendment.

I move to some of the other features of foreign organisations. One has to bear in mind that the definition includes any overseas company or subsidiary of an overseas company, and it also means any individual who is neither a New Zealand citizen nor a permanent resident. So when we are talking about individuals, we are talking about roughly 50,000 Australians who are living in New Zealand and the 60,000 overseas visitors who are here at any one time. They can be spied on by the Government Communications Security Bureau quite legitimately if this legislation passes, and that is of real concern to us.

I think about some of the company examples. When this bill was first introduced we raised the issue of the Singapore-owned Dominion Breweries’ intentions of closing down the Monteith’s brewery on the West Coast. We did not think that fitted the bill’s requirement to look after our economic well-being. Perhaps a more current example of what this legislation enables—and perhaps in this case we would support it—is that our economic well-being has been undermined by Frank Russell Co. That is the organisation that advised the Government Superannuation Fund to invest on the international sharemarket, leading to losses of over $324 million in the last 14 months.

I rise specifically to refute the remarks we have just heard from Mr Rod Donald, the co-leader of the Greens.

💬 Rod Donald: The Government should do that.

No, no. This is Parliament, and I think it is perhaps more powerful when someone who is not a member of the Government is prepared to point out that the member is talking rubbish. In fact, I thought I was going to be replying to Mr Locke, who, prior to the tea break, made a very similar speech and spoke for 70 seconds in support of his amendment, but has chosen not to speak after the tea break. But I do not want to be too critical of Mr Locke. It is clear to me that he is probably on his way to Baghdad to be a human shield, and I am a bit surprised that Mr Donald, who was also telling us he was going to be a human shield, apparently has not got around to going.

💬 Richard Worth: He hasn’t made the bookings yet.

Yes. Well, I think it goes somewhere towards showing the strength of their convictions, even though—

💬 Ian Ewen-Street: They can’t afford it.

No, no. There is no question of a lack of money. Mr Locke told me, and he was somewhat bemused, that many people, whom one would not normally associate with the Greens, had offered to help pay his fare—but not a return fare.

However, let me make this point. The Greens would have us say that the Government Communications Security Bureau should not ever, in any way, eavesdrop on diplomatic missions. One has to ask what planet they live on. Are they not aware that, for example, even Jordan, normally known as a friend of Iraq, has just expelled, yesterday, a number of Iraqi diplomats? How did it know to do that? It said they had been engaged in activities they should not have been engaged in. The idea that no diplomatic mission in New Zealand has ever engaged in spying—I thought Mr Donald would have done a little bit of homework! We know there have been cases of diplomats who have been expelled from New Zealand because they were engaged in subversion against this country. I saw that the Iraqi diplomat in Sydney wanted to come to this country. Would the Greens have said “Welcome to New Zealand, and under our bill you can engage in any subversion you like and we will never, never listen.”? That is nonsense.

Mr Donald also does not realise that the convention he is referring to is the reason that consular and diplomatic missions are able to carry messages through couriers, as they do. That does not mean we cannot listen in to their telephone conversations when they are engaged in spying. The fact that Mr Donald and Mr Locke are prepared to believe that no diplomat would ever do that, says something about those members. Of course, I do not think that Mr Locke and Mr Donald actually believe that. I say to them that they have a duty to this Parliament and to the country to put security interests ahead of the petty partisan policies they are quite prepared to put forward. I do not think Mr Donald for one minute believes there has never been any spying by any diplomat. He is very careful not to make a response to me now.

💬 Rod Donald: Of course there has been spying.

Oh, now he says there has been. But he wants us to have an amendment to say: “Come to New Zealand. We are complete mugs; you can spy on us.” I say to the Greens and to the Government, which relies on the Greens, that they are not fit to be in Government if they are not prepared to put our country’s security first, and that is why we are in the unusual situation that National, the ACT party, and, I think, a few United Future members are promoting this measure of security. The Government is sitting back and letting us do it, and the Greens are promoting a motion that I would say is not in the security interests of this country. I think it is high time they put their bodies where their principles are, and that having gone around the country and earned huge cheers from various audiences by saying they were prepared to be human shields, it is about time they were. Or have they not watched television? I tell Mr Donald that if he does not hurry up, he will miss the opportunity.

I will not take my full time, but I was part way through a discussion on the definitions when I lost the call. The point I was making was that the definition of “foreign organisation”, when linked with the objective of the bureau—which we will come on to in the next part—enables the Government Communications Security Bureau effectively to spy on any foreign company operating in New Zealand. Although I sometimes doubt the benefit of some of those foreign companies to our country, I think, when one links the definition of “foreign organisation” with the objectives statement, it really does raise a question about whether it is acceptable for a State agency to be spying on foreign businesses operating in this country. I do not think it puts us in a very good light.

It reminds me of issues that were raised several years ago about the Government Communications Security Bureau, and in particular its parent, the National Security Agency in the United States, when suggestions were made that in some countries the Americans used their eavesdropping capability to give advantages to American companies. In Indonesia, for example, the Americans used eavesdropping to give an American company an advantage over a Japanese company tendering for Indonesian Government business in the telecommunications sector. That is the sort of thing that we really ought to be safeguarding against in this legislation, and the Government does not do that.

When one turns to the next page in the bill, one can see that “foreign organisation” also includes any international organisation. One that immediately springs to mind is the Greenpeace organisation. I think there is an extraordinary irony in this bill that it legitimises the Government Communications Security Bureau’s spying on Greenpeace, which is the very organisation that has been the—

💬 Hon Richard Prebble: It puts out false propaganda. It frequently breaks the law.

That is the sort of thing that some Governments do. In fact, Greenpeace suffered at the hands of French terrorists when the Rainbow Warrior was bombed, and there were very real questions about the role of New Zealand security agencies at that time.

💬 Hon Richard Prebble: Name one.

Well, despite the existence of the Government Communications Security Bureau and the Tangimoana signals intelligence station, somehow security agencies did not seem to know that the Ouvea was coming to New Zealand and what it was going to be getting up to. And the Security Intelligence Service did not seem to do a very good job tracking the terrorists when they were in this country. So I think it is extraordinary that this legislation will enable the Government Communications Security Bureau to spy on the likes of Greenpeace, when Greenpeace is the one organisation that has suffered at the hands of a terrorist Government, which sank the Rainbow Warrior in Auckland Harbour.

I believe that the Intelligence and Security Committee has not done a good job. It is a statutory committee, not a select committee, and those members who doubt my word should have a look at what David McGee has written on that particular subject. There is a very real distinction between a statutory committee—fortunately it is Parliament’s only one—and a select committee. If this bill had gone to a select committee, and if all parties had been on that select committee, I believe that some important changes would have been made to those definitions to tighten them up.

I seek the Committee’s support for our amendment to clause 4, which is to add the words “but not the New Zealand diplomatic mission of any country”, because in our view that phrase gives effect to the Vienna convention of which New Zealand is a signatory, and keeps good relations between our country and those missions based here. It avoids the problem the current definition has, which is the one that has clearly upset the South African consul for example, who said that he would take much more than just a very grim view of anybody violating their privacy by hacking into their computers, tapping into their telephones, and bugging their homes and offices.

💬 Richard Worth: Which consul? Was that Mr Fortuin?

Indeed, it was Mr Fortuin—a former employee of this Government, I hasten to add. Mr Fortuin was expressing very real concern about the role that the Government Communications Security Bureau would have as a result of this legislation.

New Zealand First will be supporting the passage of this bill but without the amendments I have heard of late, for they do not make sense to us. I must also put on the record my expressions of concern that the Government does not seem to want to contribute in any way, shape, or form to this debate. That tends to indicate to me that this Government, true to form, does not want to talk about some of the very conservative and conventional things it is required to do as a Government, because at the very core and heart of its Labour being it does not like them.

When Labour members get into debates on the hustings in future, I will hear all their rhetoric again about protecting human rights, privacy, and all of that. They will be big on the jaw out on the hustings, but not on this issue we are debating tonight—in fact, they have not debated it. They know it is a reality of life that such bills need to go through the House and become law, but they do not want to have to admit they did it. If that were not so, they would be on their feet seeking a call in this debate and making a contribution, so that their words were on the record. However, it will be on the record that they have been silent. My interpretation is that their heart lies very much in what they are hearing from the Greens; they just do not have the bottle to stand up and say so.

I draw attention to a particular part of the bill—[Interruption] If Jill Pettis has something to say she should take a call. She should not parrot over there like the old fishmonger’s wife. She should stand up and take a call.

💬 Jill Pettis: Get the bill passed. You won’t get on the front page of the New Zealand Herald with this speech.

I raise a point of order, Mr Chairperson. You know what I am going to comment on. I really do think that in terms of the Standing Orders, if the junior whip for the Government wishes to interject rarely and reasonably, and with a little bit of humour, that is one thing, but if she wants to keep up a running commentary during my speech she should do the proper thing—that is, take a call and make a 5-minute speech.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for that, but it was not a running commentary. It was getting close, but it was not quite there.

I also signal to the Government that I find it a little strange that we are approving the functions of the bureau in clause 8, and I will touch on gathering foreign intelligence, intercepting communications, and all of that—

The CHAIRPERSON (H V Ross Robertson): We are doing Part 1, clauses 2 to 5.

I am sorry, but I will get to that. I signal now that there are areas of the bill, such as Part 1, where I have failed to find any determination by the Government to deal with acts of organised foreign crime that are now being seen in our streets in terms of the distribution of methamphetamine. Those are international issues of security for our nation. I have yet to hear any Government member say how he or she intends using the Government Communications Security Bureau Bill to shore up some of our weak laws and weak policing in respect of international crime and foreign interventions into our society, because that is proving to be detrimental to the health and well-being of our nation today, and, indeed, is undermining law and order in our streets.

I argue—and I am waiting to hear from a Government member—that the issues of security, and the well-being of our young people and of our nation, are surely deserving of the attention of such an organisation. Therefore, I expect to hear some mention of those issues, and the authorisation given to the Government Communications Security Bureau to act on them in conjunction with New Zealand Police. There is plenty of time still, and maybe the Minister, or the very loud and vocal junior whip over there, might care to stand and enlighten us all as to how this bill will aid the police in protecting our interests from improper, undue, and illegal foreign interference in New Zealand.

The question was put that the amendment set out on Supplementary Order Paper 61 in the name of Keith Locke to clause 4 be agreed to.

Green Party 9.

Labour 52; New Zealand National 26; New Zealand First 13;ACT New Zealand 8; United Future 8.

The question was put that the amendment set out on Supplementary Order Paper 36 in the name of the Rt Hon Helen Clark to clause 4 be agreed to.

Amendment agreed to.