Government Communications Security Bureau Bill

The Green Party has several amendments under this part, three of which are along the lines suggested by the Privacy Commissioner, who made a very intelligent submission to the Intelligence and Security Committee. I will move these motions, which are amendments he suggested. The Committee and Parliament as a whole should take them on board. For a start, clause 15(1) would add paragraph (c) “otherwise intercept any private communication.” The aim of this is to guard against the situation where the permission of a person alone is sufficient for an interception. The commissioner wants warrants to be obtained. If one gets a householder’s permission to intercept a communication and from that household one looks at the communications of someone in the next-door property, the fact that permission has been given to the Government Communications Security Bureau should not avoid the need for a warrant. That is a very good suggestion made by the Privacy Commissioner, and it is now put down in an amendment.

The idea in clause 16(1) is to omit the words “or by any other enactment”, which is a very general term. In this part we are talking about warrantless communications, and there is a particular problem with warrantless communications. If we just have any other enactment to allow this, without specifying those particular Acts, we could get into a lot of trouble. On behalf of the Green Party I suggest that in clause 23(1) we change the period of the warrants from 12 months to 6 months. The Privacy Commissioner argued that 6 months is quite a long time and there should be some sort of review. It does not mean to say the interception could not continue beyond that time, but there would have to be a review process and an additional application in order to achieve that extension of the warrant. That would be more in line with warrants in other agencies that do not go for 12 months. My amendment to clause 24A adds after the words “whose communications are to be intercepted”, the words “and also to take reasonable steps to avoid damage to computer and communications equipment accessed in the interception process.” This last amendment is not a suggestion of the Privacy Commissioner, but it would be a useful addition to the bill.

Part 3, “Interception of communications”, is very important. It is a considerable invasion of our privacy when an agency like the Government Communications Security Bureau is given the right to intercept electronic communications, which we use so much these days, and, in tandem with the Crimes Amendment Bill (No 6) and the Telecommunications (Interception Capability) Bill, the powers to intercept electronic communications of all types, plus the right to hack into people’s computers—that is, to access people’s computers remotely, without them even knowing that that is happening. Under clause 16, which refers to unwarranted interceptions, it will be done only to foreign communications. As I said earlier, the term “foreign” is so wide that it can include a lot of foreign non-governmental organisations, such as Greenpeace, Amnesty International, etc., or subsidiaries of foreign corporations. Also, any New Zealander in communication with a foreigner could be intercepted. Most electronic communications do not carry passport details with them, so none of the intercepting agencies really knows whether they are intercepting a New Zealander or a foreigner. New Zealanders can be caught up in this system, which is why it is very important to have all the proper qualifications here, in terms of warrants and proper authorisation. There should not be any looseness in the system.

Clause 20, “Authorisation to access computer system”, contains a very broad power. I am sure that most people, like myself, keep a lot of back-files on their computers for years. A lot of our personal lives—all our thoughts and everything—are on our computers.

I listened with some interest to the contribution that was made by Keith Locke, and I think we might be reading different parts of the bill. When I read the purpose of Part 3, and, more particularly, the restrictions imposed on interceptions contained in clause 14, I was struck by how limited the powers of the Government Communications Security Bureau were. Frankly, I was quite surprised at the processes by which that information has to be obtained. I was interested to see that clause 14 states that interceptions are not to target domestic communications at all.

💬 Ron Mark: It’s to look after the unions.

Maybe Mr Mark is right; perhaps we should not go too far down that track. However, it is worth just spending a bit of time on that. For those members opposite who have not read the bill, I say that clause 17, which relates to the issuing of the interception warrant, is completely subject to the restrictions imposed by clause 14. In legal terms, the bar is actually set quite high for those who are seeking to obtain or intercept information by one means or another.

It is worth spending a bit of time on clauses 14 and 15, because I imagine that they will become the focus of the debate on this part. Clause 14 states: “Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person ... who is a New Zealand citizen or a permanent resident.” I would have thought that that was pretty limited in that case.

Clause 15 goes on to say: “(1) Unless authorised by an interception warrant to do so, neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may—(a) physically connect an interception device ... or (b)”—and this is where the bill gains in strength, and gets a bit of grunt—“install an interception device in a place for the purpose of intercepting communications that occur in the place.” That emphasis is a change from the original clause 15(b), which read: “install an interception device in a place—(i) without the permission of the occupier of the place”; that has now been removed. That provision has been strengthened in the sense that the need for the interception to occur is no longer subject to the permission of the occupier. That is a change that the select committee has made, and, in my view, it is a significant change.

Perhaps it is just a bit of a quirk of mine, but the other thing I thought was quite interesting was that the old clause 15(b) phrase “for the purpose of intercepting communications made or received in the place” has been replaced by the phrase “that occur in the place”. That widens the scope. The interception may occur as long as the intercepting communication occurs in that place. In other words, the interception does not have to be made or received; it just has to occur. That is a widening and a strengthening of the earlier provision.

I will turn now to clause 17, which deals with interception warrants. I will just reiterate what I said earlier, which is that the issuing of an interception warrant is subject to clause 14 the whole way through. That means interceptions are not to target domestic communications. The Minister in the chair might be able to help me out here, but my reading of it is that, with the issuing of an interception warrant being subject to clause 14, the warrant cannot relate to the communications of a New Zealand citizen or a permanent resident. Is that right? I think it is pretty limited.

💬 Ron Mark: It’s a bit soft.

My colleague Ron Mark says it is a bit soft. I am surprised by the narrow scope of that clause, and by the way in which the see-saw has come down on the side of the public good, as opposed to the privacy of an individual. Actually, the see-saw has not moved very much at all. I would be very interested in any other comments other members may care to make.

I will pick up on the points that have been raised by the honourable member Simon Power. I ask the Government to reflect on this. I know what this bill is all about; it is about enhancing our security, and protecting ourselves. In the light of September 11, and the things we have seen since then, it is a very sensible bill. We might argue that it has taken too long to get here, but when we look at some of the issues that face us as a nation, and we reflect on a lot of the debate we have had in this House in respect of border control and immigration, I have to ask what clause 14, “Interceptions not to target domestic communications”, means in stating: “Neither the Director, nor an employee of the Bureau, ... of a person ... who is a New Zealand citizen or a permanent resident.”

Let me use an example, so that I am not accused of being xenophobic or whatever. In the Middle East I was known by a couple of names. I had the names Hernam Singh and Abdul Aziz. Let us just imagine that Abdul Aziz came to New Zealand on a tourist visa to travel around and look at our wonderful scenery, then sought to change his status from that of a tourist to that of a resident or a student, so as to attend university. We all know that that is possible here, because the Minister has answered countless questions about that very issue, and has confirmed that that indeed happens. After 2 years in New Zealand, Abdul Aziz then applies to be a permanent resident. At that point, none of his internal communications within New Zealand can be monitored by this bill. Is that sensible? It is not sensible.

The one thing we have all learnt from modern terrorist operations is that, to those people, time is no boundary or limitation. The prospect, idea, or method of installing people in a country, where they are sleepers, and go about establishing their reputations, their careers, their CVs, and their history alongside ordinary New Zealanders, is a time-proven method of operating. It is standard operating procedure for many terrorist organisations. It is an operating procedure that has been used very effectively, because they know that, after a certain time, an individual’s slate is cleaned and sanctified, and that person can then move out on to the greater, international market with a clean New Zealand passport, and operate with freedom inside another country, or can commence operating inside the host country. This clause prevents the Government Communications Security Bureau from monitoring the communications of such an individual.

I ask the Government whether that is what it intended. Is that sensible? That is where the Security Intelligence Service comes in. Maybe the Minister in the chair, being as learned and well-paid as he is, could take a call and satisfy my concerns by explaining how our other internal security mechanisms pick up and kick back on this particular worrying anomaly, just to reassure me and the Committee that such a scenario could not be played out, and that such a scenario, if not covered in this bill, is covered in other legislation that the Security Intelligence Service acts under or that the New Zealand Police may have at its disposal. Far from having the concerns that Mr Locke has, I do not see anything in clause 14 that worries me about the freedoms and rights of people who are not even citizens of this nation but are simply permanent residents. I see a threat to the New Zealand security system, a failing in our internal security, and a gap in that clause that would give comfort to people who might have in their intent the notion or the deliberate plan of acting against New Zealand’s interests or, long term, against the interests of New Zealand’s allies. I really would appreciate the Minister satisfying my concerns by taking a call and commenting on that right now.

The previous speaker, Ron Mark, said earlier in his speech that we all know what this bill is about. I am beginning to wonder whether some Government members do actually know what this bill is about, because they have not risen to their feet to comment on it in any way whatsoever, which suggests to me they do not have a clue about what is going on here.

I would therefore like to point out briefly that what we are talking about in all these polite words is the Tangimoana radio signal station—that is, the station that failed to pre-empt the Rainbow Warrior bombing, by not picking up that the French yacht the Ouvea was on its way to New Zealand—and the Waihopai satellite communications station, which we all know failed to predict the Fiji coup, because it, clearly, was not listening to communications coming out of or going into Fiji. That is what the Government Communications Security Bureau is and does, and it has all the international connections that we have referred to previously.

I digress by saying that I have visited the Waihopai base in Blenheim a couple of times. My first visit was made without advance warning. It was fascinating to look at the foyer, because up on the wall were photographs of all the other bases—the Australian, British, and American ones. When I came back a couple of months later on an official visit, I think with Labour MP Tim Barnett, those photographs had been taken down. On that second visit, the most fascinating thing about the foyer was the empty picture hooks on the walls, and the fascinating thing about the base commander’s office was that all the mugs, bar half a dozen of them, were missing from the shelves on the back wall, because they had engraved on them all the different conferences he had been to overseas. The second time round, he had been to many fewer conferences!

I return to the part. Mr Worth said earlier that there needed to be a balance, and we entirely agree. We are simply saying that the balance is wrong, and in this particular part I appeal to all other parties in the Committee to support the amendments Keith Locke has put up. He is trying to give effect to the very real concerns raised by the Privacy Commissioner, and those concerns are real. So in the same way that in the previous part we would prefer not to have “economic well-being” and “international well-being”—instead, accepting that there does need to be a concern for security but constraining that to acts of espionage, sabotage, and terrorism—in this part we are saying that there does need to be a limit placed on the extent to which the interceptions authorised by warrant can be applied. That is why we want to add the words “otherwise intercept any private communications”. Equally, with clause 16, we want to delete the words “or by another enactment”.

From our point of view what we are dealing with here is a bill that gives the Government Communications Security Bureau extraordinary powers to hack into people’s computers, and to tap their phones and bug their homes. We at least want those aspects of the bill that are subject to ministerial warrant or authorisation to be as tight as possible, because the organisation, the Waihopai spy base, can do extraordinary invasions of people’s privacy through its electronic-trawling exercise, known as Echelon. We know that that interception system monitors every phone call, every fax, and every email transmitted via international telecommunication satellites, which, in our view, infringes the privacy of law-abiding individuals and organisations. There is nothing we can do to stop that, but the very least this Committee could do is support the amendments in Keith Locke’s name to ensure that where a warrant is issued it is issued for the very narrowest of purposes.

On that point I would like to finish on clause 14, “Interceptions not to target domestic communications”. The issue is “target”. The purpose cannot be to intercept domestic communications. As I said on an earlier part, the tape will not be turned off when people here taking part in a foreign conversation respond, because then the conversation would not make any sense. So although people’s communications might not be targeted, certainly they are being monitored, recorded, and analysed. According to the best sources we have, those communications are going straight back to the National Security Agency in the United States of America, which supplied the Echelon system, the ‘dictionary” system, and which, in effect, runs the Waihopai spy base, even though it is our taxes that pay for it.

I want to make just a short call. I refer to the Government’s Supplementary Order Paper 36 in the name of the Rt Hon Helen Clark, which amends clause 14. Simon Power might be interested in having a look at this, as well.

Further to the concerns we have just expressed, there is one other amendment that the Government is making, and that is to insert after the words “a foreign organisation” the words “or a foreign person”. Clause 14 would then read: “for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.”

I am a little confused now, because that raises a question. I will ask the Minister in the chair one more time—and I hope he is awake, because I would seriously like an explanation. He has a whole bank of officials he can consult. He can get an answer and advise the Committee. I ask him whether that surely does not raise the question of how one justifies saying that a permanent resident is not a threat but a foreign person is. How can this Government—and this Government of all Governments, which criticises my party up hill and down dale for targeting foreigners—right here differentiate between foreign persons, and accord greater privilege to permanent residents who we know are foreign persons yet to gain New Zealand citizenship? That is how I see it. Am I wrong?

All I am saying is that the concern from the Opposition side of the Committee is that clause 14 appears very loose. Clause 14 makes it impossible for the Government Communications Security Bureau to monitor or intercept the communications of persons who are New Zealand citizens or permanent residents. We are questioning why permanent residents should be included. Now, as I look at the Supplementary Order Paper in the Rt Hon Helen Clark’s name, I question it even more, given that the Government is differentiating foreign persons. There is a question there, and the question is this: what makes a foreigner who has gained permanent residence any less of a threat than a foreign person who has been in the country for precisely the same period of time but who has not yet been approved or given permanent residence? Surely the difference lies in a piece of paper and a tick, as far as the interpretation of this bill is concerned, but in terms of the individual standing before us there could be no difference.

Am I clear, or am I confusing the Minister? Would he like to ask me a couple of questions and ask me to explain myself? I would certainly like to know from the Minister why a foreign person living in New Zealand, who may well have applied for permanent residence but has not yet received it, is considered to be different from a person who has gained permanent residence. My argument is that there should be no reference to “permanent resident” in that clause. If the Government is going to exempt New Zealand citizens, that is fine—please explain to me how we pick that up in other legislation—but I suggest to the Minister that there is a serious anomaly in the legislation and it is deserving of an explanation to the Committee. Or are we going to see more of the same bland, know-nothing, quiet arrogance from the working class party? Please, can the Minister explain?

I rise to reply to the points made by Mr Rod Donald and Mr Ron Mark. Clause 14 is not as either of them has described it. I say to Mr Donald that he has been in Parliament long enough to know that the title of a clause is not part of the law. He has to read the clause, and the clause is quite clear. It states that the Government Communications Security Bureau cannot intercept communications of a person who is a New Zealand citizen or a permanent resident. I would have thought that the Greens would be in favour of that, instead of suggesting otherwise. I most certainly did support it, because the purpose of the Government Communications Security Bureau is to guard us from foreign threats. We have the Security Intelligence Service to guard us from local threats, and that is a split that is made worldwide.

Mr Ron Mark, if I understand him correctly, wants to know why we do not authorise the Government to spy on all permanent residents. I can tell Mr Mark that there is a very good reason for that, which is that people who have permanent residence have already gone through a process, and they been approved as such. Mr Mark should understand what he is suggesting. The biggest group of permanent residents in this country are people from the UK. We have over 350,000 permanent residents from the United Kingdom, and, if I understand the New Zealand First Party correctly, it is suggesting that that group of people is somehow some sort of security threat to this nation. Well, I would like to see New Zealand First put that speech around the country, and suggest that that is what a New Zealand First Government would suggest. We have permanent residents from the UK who have been living in this country for 30 to 40 years, and if we are suddenly going to suggest that, because of events in the Middle East, we now have to include them among those subject to security warrants from the Government Communications Security Bureau, then I really think those members need to get a grip.

But I do say that it is legitimate for Mr Ron Mark to raise these questions, and they ought to be answered by the Government. This is a serious bill. It is a bill that has been called for for a long time, and it needs to be debated. I suggest that the reason the Government is not prepared to debate it has been actually touched on by the Greens. This is a bill that puts in legislative form the fact that there is a longstanding intelligence agreement between the United States, the UK, Canada, Australia, and New Zealand—[Interruption] And in my case I am in favour it. Sorry; what was the member saying?

💬 Hon Brian Donnelly: Long may it continue.

Thank you. It is not often that we agree. The member said: “Long may it continue.”, and I see absolutely no reason that we should not say that. But I do find it very interesting that here we are, this week, putting in legislative form statutory recognition of the fact that our security lies with our traditional allies, yet we are following a foreign policy where the Prime Minister is saying—for, I think, domestic, political purposes—that our security does not lie with the United States.

The Committee ought to realise that some of the intelligence we are providing may be of assistance to the UK, Australia, and America in Baghdad today. That may very well be the case. That does not worry me, and I am quite prepared to be upfront about it. But I suspect that it worries the members opposite, because they are not prepared to discuss what they are doing. I also suspect that some Government back-benchers do not actually realise that some of the things Mr Locke is saying—although he might put it in a somewhat exaggerated form—are in fact correct. I am not concerned about it, but some of the things he is saying most certainly are correct. I think that those Government back-benchers who think they are following an anti-American line because that is what they want, do not actually realise that our Prime Minister runs at least three different foreign policies at exactly the same time. There is the one she gives us on television, then, of course, there is this one. I find it very interesting that she is the Minister in charge of this bill, yet she has not said a word about it. Why is that? She does not want to explain it.

I move, That the question be now put.

The Committee stage of this bill is now in its third hour. We have called valiantly and repeatedly for members of the Government to take a call, and they have remained mute. Requests have been made to the Minister but he has declined them. Those who have sat in the chair in that 3-hour period have similarly declined to take the opportunity of participating in this debate, and Mr Prebble, in the comments he has made in the last few moments, has raised the issue as to why that is. With real sadness, I suggest that that is happening in the context of the significant issues that are occurring in Iraq, where the need for intelligence in the military context is ever-pressing. Yet Government members are simply not prepared to take part in this debate. I would suggest that that is sad. Instead, we have seen three members on the Government side of the Chamber limit their contributions to this debate to the moving of closure motions. That is disgraceful. Members on the Government side of the Chamber could, if they wished, make a contribution, yet they choose not to do so.

Two parts of this bill are significant: Part 2, which has already been debated and passed, and Part 3, which we are currently debating. I urge Government members, in the context of what is happening in the world community, to be prepared to stand and comment on the merits or otherwise of this bill. This bill is being passed on the basis of a coalition of the willing, to use a well-worn phrase—in this case it is the Government and National, who are fielding the numbers for this legislation to get through. It is shameful—and Government members must acknowledge this—when that is the case, that Government members are not participating in this very significant debate.

Part 3 has a number of provisions in it, obviously, but one of the central parts is the distinction drawn between, on the one hand, interception warrants and, on the other hand, computer access authorisation. The Greens made strong submissions for changes to be made to Part 3 that, in the result, were ultimately unsuccessful. Some of the issues on which the Greens unsuccessfully argued for change touched on the decision of the Intelligence and Security Committee to decline to give all people in New Zealand protection from having their communications intercepted. A second illustration was the decision of the committee to decline to reduce the period for which a warrant is in force from 12 to 6 months.

I want to look very briefly at what Part 3 is all about, in the context of the reality of the day-to-day operations of the Government Communications Security Bureau. The starting point is that there is to be no interception of domestic communications, and that is because the bill forbids the bureau to authorise or take any action to intercept the communications of a person who is not a foreign organisation, but who is a New Zealand citizen or a permanent resident. In my view, Mr Prebble has accurately explained the implications of that provision.

We then move to the case of permissible interceptions with warrants or authorisations, because the bill forbids certain types of interception taking place without a warrant or authorisation. There seem generally to be four classes of case. The first involves interceptions where there is physical connection of the interception device to any part of a network—and that is straightforward enough. The second relates to installation of an interception device in a place without the permission of the occupier. The third relates to the installation of an interception device in a place, where the purpose of the installation is to intercept communications made to or received in that place. Then finally, there is the situation of interceptions that involve accessing computer systems. In all those cases, an interception warrant or a computer access authorisation is required.

I move, That the question be now put.

I think the problem here is that people do not quite understand the technology of interception. This part has a provision on interceptions without warrants, and the reason there is such a clause is that when we are talking about something like the Waihopai satellite communications interception system, it is a vacuum cleaner - type system. It draws down millions of communications passing through two communications satellites, and it then filters those communications by using key words, key telephone numbers, fax numbers, destination phone numbers and origin phone numbers, etc.

But the key word system, in particular, is very hard for New Zealand to control when we are part of—and Richard Prebble referred to this—a five-nation network with Britain, the United States, Canada, Australia, and ourselves. One can put a key word in. I think Ron Mark mentioned a name that he used to get called by, although I have forgotten what it was now. But that name could be put in the system—the National Security Agency puts a whole lot of those key words into the Echelon system that the five nations are part of—and how will the Government Communications Security Bureau here figure out what that name means, or why it is spying on Ron Mark under that particular name?

There is no way, practically, that New Zealand can exercise its sovereignty when, for example, the Waihopai system was used for the war in Afghanistan—and we have a report for the US Congress put out on 11 July last year that talks about Waihopai being used for that. It states that. It refers to the SAS, stating “Helen Clark recently acknowledged the presence of SAS forces on the ground in Afghanistan.” The report goes on to state: “Intelligence support was offered, as well. New Zealand’s Waihopai monitoring station is part of the five-nation Echelon network.” That report admits that communications concerning Afghanistan were being intercepted at Waihopai. That was part of our contribution to that war.

Now, how can we guarantee that that same five-nation system is not intercepting communications and using them for the Americans’ effort against Iraq? That is the problem. It is part of the technology of interception. It is not just that one interception device is being put on one wire between two people. People say that the interception will not target domestic communications. Well, of course, that is a great principle, but how will it be carried out in practice when we have something like Waihopai? If we intercept a communication of my colleague Ron Mark there under his pseudonym, how would we know whether he was a New Zealander? That would not be in the communication.

R Doug Woolerton: We checked. He’s all right.

The member checked? So the problem is that the key word system sweeps up a whole lot of innocent people.

When the Law and Order Committee was hearing submissions on the Crimes Amendment Bill (No 6), which gave the Government Communications Security Bureau authorisation to intercept communications, including at Waihopai, a Wellington woman by the name of Anna Willing gave evidence to the committee. She said she had sent an email to a friend in America on the eve of the presidential elections. Her friend had been visited by the FBI, which had intercepted the email she had received from that New Zealand woman because it had three words in it: “presidential”, “election”, and “funeral”. Anna Willing had said in that communication that she could not watch the presidential elections on TV because she was going to a funeral, but that combination of words was intercepted, either at this end or at the FBI end—who knows? That communication did lead to an FBI investigation of her friend. That is what such mass interception can lead to.

The Privacy Commissioner had laid out certain proposals, which I have put into Supplementary Order Paper 61. The report back on the bill is very short and to the point. It does not deal with the Privacy Commissioner’s questions, at all. I say that the Government should answer them.

I move, That the question be now put.