Government Communications Security Bureau Bill

The Green Party has an amendment to clause 30 in this part. We want to add a new clause 30A, “Amendment to Privacy Act 1993”. We want to add the following subsection to section 57 of the Privacy Act: “(2) Despite subsection (1), principle 9 applies to the Government Communications Security Bureau.” I should explain here that principle 9 is a principle in section 6 of the Privacy Act, and all Government departments are supposed to abide by it—that is, the agency is not to keep personal information longer than necessary. Principle 9 states: “An agency that holds personal information shall not keep that information for longer than is required for the purposes for which the information may be lawfully used.” This again comes from the Privacy Commissioner. That was one of his suggestions. He thinks that the general principle should apply to all Government agencies, including the Government Communications Security Bureau. He says in his submission to the Intelligence and Security Committee that he talked to the Government Communications Security Bureau about the issue, and it did not object to that change, so I cannot quite understand why the report back from the committee did not include it. The Government should address the matter. The Government has set up a Privacy Commissioner, but it not only ignores his substantial submission in the report back—as the committee has done—but when the bill comes before the House and an MP puts forward amendments based on the concerns of the Privacy Commissioner, the Government does not even bother engaging with that debate. That is being very disrespectful to the Privacy Commissioner.

This part has amendments to a lot of different sections. One of the amendments under clause 28 is the amendment to the Inspector-General of Intelligence and Security Act. I think the role of the Inspector-General is quite controversial. The Inspector-General has quite a few powers to investigate complaints, to review the Government Communications Security Bureau and report annually to Parliament. In the past his reports to Parliament have not been of much use. He says that he has not had many complaints. He does not get many complaints with electronic interception because people do not know that they are being intercepted—that is the nature of the interception. I think he has to go further than that. Today when I asked a question in Parliament about the powers of the Inspector-General of Intelligence with regard to the use of Waihopai for the war in Iraq, Dr Cullen, on behalf of the Prime Minister, replied that the Inspector-General had said that our sovereignty was being upheld by Waihopai. I raise the same point that I raised before: given the nature of the technology of stations like Waihopai, it is very hard to guarantee that our sovereignty is being upheld when there are interceptions using key words.

Under this section, we should consider the role of the Inspector-General. I do not think that his role has been very successful. He has tended to side with the intelligence agencies in the two cases that have arisen—not specifically in respect of the Government Communications Security Bureau, but on the other side of his reporting, in respect of the SIS. He did say that there was nothing wrong with the intrusion into Aziz Choudry’s place. I see that Aziz Choudry later won a court case against the SIS, but his position had to be taken in the face of opposition from the Inspector-General of Intelligence and Security. There is a problem here of accountability that applies to the whole bill, and it would be better in my opinion—and this is the position of the Green Party—if we did not have the Government Communications Security Bureau. It has some positive functions in this bill.

We come to the final part of the Government Communications Security Bureau Bill, Part 4. It is headed “Provisions relating to other enactments”. It proposes a host of changes to other legislation. There are amendments to the Crimes Act and the Higher Salaries Commission Act. There are certain changes that Mr Locke has been talking about that refer to the Inspector-General of Intelligence and Security Act; there are amendments to the New Zealand Security Intelligence Service Act, to the Official Information Act, to the Public Finance Act, to the Radiocommunications Act, and to the State Sector Act. Then there is the revocation of secondary legislation—the Crimes (Exemption of Listening Device) Order.

I shall deal with two pieces of legislation that are subject to amendment by Part 4. The first relates to the Crimes Act amendment that is set out in clause 26, and a significant change to section 216B(2)(b) of the Crimes Act. Members opposite are nodding quite clearly, because they have a close and sufficient familiarity with that particular and very tricky provision. Section 216B is headed “Prohibition on the use of listening devices”, and subsection (1) was itself amended in 1999. Basically, the provision creates a term of imprisonment not exceeding 2 years for everyone who intentionally intercepts any private communication by means of a listening device. The particular change in clause 26 proposes to amend section 216B(2)(b) by inserting after subparagraph (iii) a further subparagraph that the draughtsman has identified as subparagraph (iiia). It contains the words: “the Government Communications Security Bureau Act 2001;”. Members opposite will immediately be aware of the huge significance of that change. That change is not necessarily the most significant one, but it is certainly one worth commenting on.

The other issue relates to a change to the Inspector-General of Intelligence and Security Act. That legislation came into force on 1 July 1996, and basically set up the office of Inspector-General of Intelligence and Security with provisions that dealt with the functions of the Inspector-General, complaints, and associated amendments to the Ombudsmen Act and to the Privacy Act. Again, I can see members opposite nodding because of their familiarity with those particular provisions. What is occurring here though is an amendment to section 11(1) of the Inspector-General of Intelligence and Security Act. After paragraph (d) in that section, a new paragraph that the draughtsman has decided to title (da), has been inserted. The actual wording of that paragraph is: “without limiting the generality of paragraph (a), to review the effectiveness and appropriateness of the procedures adopted by the Government Communications Security Bureau to ensure compliance with the provisions of Part 3 of the Government Communications Security Bureau Act 2001 in relation to the issue and execution of interception warrants and computer access authorisations;”.

Those were the two primary provisions in Part 4 that I sought to deal with in the limited time available. However, I do not doubt that members who follow me will want to draw the attention of the Committee to other significant changes in that part.