Urgent Debates — Dotcom Case—Inquiry into Government Communications Security Bureau Actions

I have received a letter from Grant Robertson seeking to debate under Standing Order 386 the release of the inquiry by the Inspector-General of Intelligence and Security into the circumstances of unlawful interception of communications of certain individuals by the Government Communications Security Bureau. This release is a case of recent occurrence involving ministerial responsibility. The Inspector-General’s report was released at 1.42 p.m. today. Mr Robertson’s application was received by me at 1.55 p.m. today. I also received an application relating to the same matter from Dr Russel Norman at 2.29 p.m. today. Applications for urgent debates must be received before the House sits.

However, given the current public interest in the performance of intelligence agencies and the need for a high level of public confidence in their activities in relation to New Zealand, I have given particular consideration to Mr Robertson’s application, which was in before the House sat today. As there will not be an opportunity to debate the matter for some weeks now, I call on Mr Robertson to move that the House take note of a matter of urgent public importance.

I move, That the House take note of a matter of urgent public importance. What an incompetent shambles this Government is at the moment. What we have seen around the actions of the Government Communications Security Bureau and the whole of the Kim Dotcom case is a circus from the Government and its agencies. And the ringmaster of that circus is John Key.

John Key is the person who has the oversight, on behalf of all New Zealanders, for our security agency. He is the sole democratic check on how our security agencies behave. In fact, it is written in law. Section 8(3) of the Government Communications Security Bureau Act says that the functions of the bureau are “subject to the control of the Minister.” That is a significantly higher test than almost any other ministerial responsibility there is, yet this Minister has been unable to tell us anything about the activities of his agency—the agency that spies on people. These are serious powers that the people of New Zealand accept will be provided for if there is a democratic check. That democratic check is the Prime Minister, and he has not fulfilled his responsibilities.

The Prime Minister does not seem to know anything about Kim Dotcom. He claims that the first time he heard of him was on 19 January 2012. Well, by the time the Prime Minister had heard of Kim Dotcom, the following people, who interact with the Prime Minister on a reasonably regular basis, had: the Solicitor-General knew, the police knew, the Organised and Financial Crime Agency of New Zealand knew, Crown Law knew, John Banks knew—but then he forgot—Maurice Williamson knew, Jonathan Coleman knew, Simon Power knew, Nigel Bickle from Immigration New Zealand knew, the media knew, John Key’s electorate office knew, because they had had contact with Kim Dotcom, and a man named Chris, who was a contractor on Kim Dotcom’s mansion, knew as well. But John Key did not know.

Chris the contractor had worked it out, but John Key did not know that Kim Dotcom was in his electorate. It defies belief, and it speaks of a Prime Minister who is so relaxed and so casual now that he is not bothering even to provide proper oversight of the organisations for which he is responsible.

Here is the list of things that Mr Key does not know. As we have said, he did not know about Kim Dotcom until the day before the police raid, and he did not know until 2 weeks ago that the Government Communications Security Bureau—the organisation under his control—was actually spying on Kim Dotcom and his associates, on behalf of the police. Until this week he apparently did not even know that a ministerial certificate to prevent details being released of what the Government Communications Security Bureau had been doing was provided by his deputy, Bill English, as Acting Prime Minister. And what New Zealand is being asked to believe is that when Bill English, acting as Prime Minister and on behalf of John Key, signs off a ministerial certificate, John Key will not know about it, and that John Key’s chief of staff was not involved, nor any of his staff.

I was once a staff member in a Prime Minister’s office, and I can tell this House with certainty that when the Prime Minister is away the Prime Minister’s office staff continue to work for the Acting Prime Minister, particularly on an issue of national security. We are asked to believe that Bill English did not think to tell the Prime Minister, did not think to brief him when he came back to New Zealand, and did not tell him at the various Cabinet meetings that have taken place. He simply did not bother to say anything, and we are asked to believe that. If that is true it speaks of a dysfunctional Government whose members are unable to communicate with one another about serious matters, such as the national security of New Zealand.

While we are talking about Mr English and that ministerial certificate, the ministerial certificate says that Mr English spoke with the Government Communications Security Bureau about its activities. He had to take advice from them before he signed the ministerial certificate. So he knew about the activities of the Government Communications Security Bureau, yet he supposedly did not tell the Prime Minister. All of these people who know this are in the Prime Minister’s life, and somehow he does not know about it. He was not even able to tell this House about whether his department, the Department of the Prime Minister and Cabinet, actually knew anything about it either. This is a Minister whose attitude is now so relaxed that he has completely taken his eye off the ball.

New Zealanders deserve better from the Prime Minister. No matter which party is in charge, New Zealanders expect that the oversight of our security agencies is taken seriously. Mr Key told this House that he had had 15 meetings with the Government Communications Security Bureau this year. What was he discussing? Were they talking about the rugby or something? He clearly does not appear to have any information about the serious matters that the Government Communications Security Bureau is involved in. Once again, the oversight function that the Minister has to provide is simply not being provided.

The New Zealand Herald said in its editorial yesterday that the Prime Minister is the sole democratic check for New Zealanders on security agencies. He has let New Zealanders down on this issue. It is as if Kim Dotcom has some kind of amnesia field round him that causes people like John Banks and John Key to conveniently forget important details about what is going on in their areas. Mr Dotcom came to New Zealand in a blaze of publicity, he then set fire to $500,000 worth of fireworks to celebrate his residency, and the Prime Minister did not notice, and apparently neither did the Government Communications Security Bureau.

The focus for this investigation that Justice Neazor has undertaken is the activities of the Government Communications Security Bureau. When we look at where Justice Neazor falls in terms of why things went wrong, it boils down to this: the Government Communications Security Bureau was not, apparently, capable of understanding its own legislation as to who a permanent resident is. It was not capable of understanding that the Immigration Act had been changed in 2009 to alter the definitions around who a permanent resident was. It was not capable, between the New Zealand Police or the Organised and Financial Crime Agency of New Zealand and the Government Communications Security Bureau, of actually having a look at the immigration file, which Immigration New Zealand has said that it passed to police.

Even having said that, the law was changed, but there was a whole year between when the law was changed and when the police raid took place and when the surveillance took place—a whole year. It defies belief that the security agency is that incompetent that it could not stay in touch with its own law, and, clearly, the oversight of the Minister in charge was lacking if that is the reason that it committed this error.

In Justice Neazor’s report there is also a statement around how it is that the Government Communications Security Bureau even came to be involved in this situation, because the bureau’s role is to monitor foreign nationals, not to monitor New Zealand citizens or permanent residents. However, Justice Neazor in his report has said that the Government Communications Security Bureau does have a role in assisting other agencies. It appears from the report that the reason that has now been given is that the police felt that in some way Mr Dotcom and his associates represented a danger to New Zealanders, and that is the excuse that is now being used.

I do not have the evidence in front of me, but on that excuse the Government Communications Security Bureau then proceeded to be involved in this case. The Prime Minister, as the Minister responsible for that, should have known about this, should have been advised about this. We have to bear in mind that this is a case involving the United States Government. This is a case where there was an extradition order signed at the highest levels of the US Government, and we are expected to believe that John Key did not know about that. Murray McCully must have known about it. He has to have known about an extradition order involving Kim Dotcom, but remember that the Prime Minister says he knew nothing about it until the raid itself. Not only that, we have a situation here where the FBI are involved. The FBI and the US Government are involved. That would twig in most people’s minds that this was quite a serious issue, but apparently not in these agencies, and apparently not in the mind of the Prime Minister, who is meant to be providing the oversight for this.

It is quite clear that there has been a massive breakdown in communication among agencies. Those agencies have apologised today—well, the Government Communications Security Bureau has. Where is the Prime Minister’s apology? Where is the Prime Minister’s apology to New Zealand for his failure to provide the oversight that he has signed up to under this Act? We have had an apology from the officials, but we have had no apology from the Prime Minister. The Prime Minister has the job of control of the functions of this bureau, and he has failed in that. The other security agency that the Prime Minister has some responsibility for is the SIS. It is quite clear that the SIS did have some knowledge of what happened in this situation. It was involved in the early days around the granting of the residency. Again, another agency that reports to Mr Key on a regular basis knew this.

So what we now have is a staggering display of incompetence by Government agencies, a Minister who does not take seriously his oversight responsibilities, a situation where the New Zealand taxpayer may be exposed to costs because of this incompetency, and a situation where New Zealanders are losing confidence in the security agencies. They are losing confidence in the social contract that says: “Yes, we will allow there to be some spying that takes place, but only if we know that there’s some kind of democratic oversight.” That democratic oversight is provided by the Prime Minister. The Prime Minister has let New Zealanders down. They deserve better from a person whose job is to act on our behalf as citizens and residents of this country to ensure that our security agencies behave well.

There are so many unanswered questions in this debacle. It is quite clear that Mr Key will have to front up again to this House and explain how it is possible that he did not know that Kim Dotcom was in this country until he was briefed about the raids. It is implausible that he did not know, but, more than that, he has let New Zealanders down by his lax oversight of his security agencies, which he controls on our behalf.

On this side of the House, this report that we are debating today does not represent the end of this matter. It is a whitewash. There are questions around whether the Inspector-General can appropriately undertake this inquiry, given his ongoing role working with the Government Communications Security Bureau. This situation deserves a thorough investigation so that we can get to the bottom of what role was played by the agencies of Government, what role was played by Ministers, and why the Prime Minister was not informed about these situations, because in the absence of that kind of investigation, New Zealanders will look at what the Prime Minister has done and they will question his honesty. And if New Zealanders are questioning the honesty of the Prime Minister, that is a serious matter. This needs a thorough, independent investigation so that New Zealanders can have confidence in their security services and get to the bottom of this.

This has been a shambles and a circus from this Government. It has been staggering incompetence. There has been incredibly poor communication. The Government needs to take responsibility, and, ultimately, the Prime Minister needs to take responsibility for this debacle.

I will choose my words very carefully because I believe that great care is needed in debating this issue, because of the fact that proceedings are currently before the High Court. There was a very interesting issue of principle that was raised by the deputy leader of the Labour Party, and that concerns the meaning of section 8(3) of the Government Communications Security Bureau Act 2003, about the performance of the bureau’s functions being subject to the control of the Minister responsible for the GCSB. And there is no debate that in this instance it is the Prime Minister.

I always recall when many years ago David Lange first became the Prime Minister and Minister in charge of the NZ Security Intelligence Service. There was a clip of him on television when he was visited by the director of the SIS. Mr Lange said “Bring me all the files.”, in a typical David Lange joking way, and the director said “Well, it’s not like that.” And it is not like that. The control of the bureau does not mean operational control over particular matters.

I would venture to suggest that if ever we got to a situation where the Minister in charge of the SIS or the Minister responsible for the GCSB was exercising operational control over particular operations of the agency, it would be a very dangerous and improper state of affairs. So it is that I as Attorney-General exercise control over Crown Law. Indeed, I have just been hunting for the particular reference, but I know that it is set out in the Cabinet Manual. It would be quite improper and unconstitutional of me as Attorney-General to exercise control over particular cases. During the allegations over the intervention by the Solicitor-General in the case involving the cameraman Mr Ambrose, I, in fact, had nothing to do with it. It would have been quite improper of me to have had anything to do with it. The Attorney-General was named as the nominal defendant in that proceeding, because there was, to quote the statement of claim, “no proper contradictor”, and that is why the Attorney-General was named. But that did not give me licence to get involved in the control and operation of that particular case, and that is the case here. It has been the Government’s announced position on the use of the capability of this particular agency that in relation to two of the persons whose communications were required, the activity was contrary to its governing legislation. But given the, confused at times, contribution by Mr Robertson, I do think that it is necessary to explain something of the background of this case and how we get to where we are, and in doing so I emphasise the need for care in talking about this particular matter.

The background starts in the United States, because Mr Dotcom and his associates have been indicted in Virginia on charges related to the theft of intellectual property on an industrial scale. It was necessary for the carrying out of New Zealand’s obligations under its extradition treaty with the United States that arrest warrants issued by a New Zealand court on behalf of the United States were executed in a manner that properly and effectively assisted the US in relation to an operation that involved eight or nine different countries. In those circumstances, there can be no surprise in the fact of the police request for assistance in tracking persons who were subject to warrants, and in relation to persons who are not New Zealand citizens or permanent residents, the agency, the Government Communications Security Bureau, is entitled to assist. But I emphasise that there can never be an acceptance by the Government or the public of the unlawful use of State power, particularly in relation to the acquisition of communications. That must be emphasised.

The circumstances of the misuse of the relevant power and the question of what follows from that event are now an issue that is squarely before the High Court. The court will deal with that issue, as it intimated to Mr Dotcom’s counsel, in the fullness of time. But I emphasise that New Zealand is part of the wider international community, the lifeblood of which is the acceptance of international obligations—in particular, those directed to the detection and suppression of international crime.

I said that Mr Robertson, in his analysis, was talking about extradition orders and was explaining the procedure, but I do not think it was done very clearly. I think it needs to be emphasised that there are two proceedings here. The first is the request for extradition. That is an act of the executive, which is based on obligations undertaken by, in this case, the United States and New Zealand. Every extradition request will involve the consideration at some point in the process of two competing public interest principles: the interest of comity on the one hand and the liberty of the individual on the other. In New Zealand, as we all know, extradition is covered by the Extradition Act 1999, and it is administered by the Ministry of Justice, but it does, as Mr Robertson observed, involve a number of agencies at any one time. The Ministry of Foreign Affairs and Trade, for example, receives and transmits requests for extradition. The Ministry of Justice will assess requests appearing in New Zealand courts on extradition matters or will instruct other counsel to appear—in this case, Crown Law.

Both countries have a bilateral extradition treaty that forms the basis of their requests to each other. It is important to understand here that extradition proceeds on the basis of a record of the case—that is, that the US provides a summary of the evidence supporting extradition and any other relevant materials. And then what the New Zealand court has to do is approach the record on the assumption that it is a fair and an accurate summary of the evidence against the defendants. It is not the role of the courts in New Zealand to try the person for the offence alleged. Ultimately, if the extradition takes place, that will be the responsibility of the Federal District Court in Virginia. What the New Zealand court has to do is assure itself that there is a qualifying offence on which the person may be surrendered to the other country for trial, and that there is sufficient evidence.

It is also important to understand, which explains the detailed nature of extradition, that once that preliminary review has taken place, the judge considers the evidence and determines whether a person is eligible for surrender. The Minister of Justice will decide whether to surrender the person, and, if that happens, then there is an opportunity for the person concerned to seek judicial review in the High Court of both the judge’s decision to recommend that and the Minister of Justice’s decision to surrender them. So it is very important that we understand that extradition is one particular process, and then mutual assistance is another. That is an entirely different form of international cooperation, and it is that one that concerns the provision of evidence or information to assist the foreign country with a criminal investigation or prosecution. If New Zealand responds positively to the country’s requests, then, in turn, that country will assist New Zealand authorities when we make requests overseas, and that happens on a regular basis. Members may have seen recently that there was a request in Australia that was turned down by the Federal Court there for various reasons. We are all partners in dealing with alleged and actual transnational crime, and conventions require New Zealand to provide mutual assistance as part of a global approach to crime. It is important not to muddle up the two processes. There is extradition on the one hand, and mutual assistance on the other.

The other thing that it is important to understand is that whether Mr Dotcom and his associates are rightly or wrongly charged, it is ultimately a matter for the courts in the United States. But it is also important to understand, as I said earlier in this speech, that it is obvious that it is open to Mr Dotcom and his associates to challenge New Zealand’s actions in courts of law. There are open courts and proper remedies that are available for any transgressions of the law, and, presumably, these are the sorts of things that are going to happen over the months to come.

I have set out these matters in some considerable detail, because I do think that sometimes in public discussion on this matter there has been a conflation of what extradition and mutual assistance are about. But I emphasise that these matters are now fairly and squarely before the court, particularly as a result of a direction made by the Chief High Court Judge yesterday. That is why it behoves all of us to deal with this matter with some sensitivity, because of the sub judice rule, which is not a mere rule but actually raises issues of great constitutional importance about the relationship between the executive and the judiciary and also Parliament and the judiciary. They are the issues that have arisen in this matter. There is a question—

💬 Phil Twyford: How about democratic oversight?

—as to what constitutes control by the Minister in this instance, and I have said that there is a world of difference. I say this to Mr Twyford, because he does raise an important matter. There is a very important point of distinction between exercising control over the agency, which is—

💬 Phil Twyford: Democratic oversight is not operational control.

—what I believe that the Prime Minister has done at all times in this case, and becoming involved in, and exercising control over, particular operations. I say to Mr Twyford that to get involved in the detail of particular operations is just as improper as it would be for me to become involved in the particular operation—

💬 Phil Twyford: You’re wilfully misunderstanding.

—of particular cases. I am not wilfully misunderstanding anything. These are matters of great constitutional importance, and when one is dealing with the intelligence agencies or, in my case, one is dealing with Crown Law, one has to be very, very careful about the extent to which a Minister exercising control gets down into the detail. The line that the member is suggesting is a very, very dangerous line.

I rise to speak in this urgent debate around Justice Neazor’s report into the unlawful activities of the Government Communications Security Bureau, the GCSB. In this instance, the Prime Minister has been very relaxed about the civil liberties and freedoms of ordinary New Zealanders. What we have seen is a Prime Minister who is so relaxed and comfortable that he has not done his job, which is to protect the democratic rights and rights to privacy of ordinary New Zealand citizens and residents. What this case shows is that the Prime Minister, who is the sole person who has the democratic responsibility to protect us from the Government Communications Security Bureau, has not done his job.

The Attorney-General gave a speech before where I believe he fundamentally gave the wrong impression about the relationship between the Minister overseeing the Government Communications Security Bureau and the Government Communications Security Bureau. This relationship is unique within all of the public agencies. The clause that is in the Government Communications Security Bureau Act—section 8(3)—appears in only two Acts. Section 8(3) appears in the Act governing the Government Communications Security Bureau and the Act governing the SIS. It states that the performance of the bureau’s functions is subject to the control of the Minister. There are no other Acts where the ministerial control is so direct than in these two Acts. The reason for that is that there is no other democratic oversight of this organisation. There is no way for Parliament to inquire into the operations of this organisation, because there is no parliamentary select committee that can inquire into them. There is an Intelligence and Security Committee, which is a statutory body, not a parliamentary body. It is not allowed to inquire into the operational matters in regard to the Government Communications Security Bureau or the SIS. The Official Information Act is effectively useless when it comes to these organisations because they always have a strong case to deny the information you are seeking, under national security grounds.

So, effectively, these organisations operate in secret except for the oversight of the Prime Minister. He is the only person who has that oversight, and he has manifestly failed to do his job in this case. The Attorney-General also tried to make a comparison with, say, for example, the police or the Crown Law Office in saying that you would not want the Minister to get involved in individual cases. But there is a world of difference in the way these organisations work. If the police are seeking a warrant, they go to a judge, and a member of the judiciary has to approve that warrant. If the Government Communications Security Bureau seeks an interception warrant, it goes to its Minister. So the Minister overseeing the Government Communications Security Bureau has to sign off every interception warrant that the Government Communications Security Bureau does if they want to put equipment in place.

So the Prime Minister knows the individuals who are being targeted for every warrant. So it is not like the Minister of Police, who does not know all the people who are being targeted by the police in terms of all their interception warrants. The Prime Minister—the Minister responsible for the Government Communications Security Bureau—knows every person who is being targeted by an interception warrant by the Government Communications Security Bureau, because the Prime Minister has to sign off every warrant. Likewise, he has to sign off every authorisation or warrant to intercept or put equipment on a computer. So if the Government Communications Security Bureau wants to get into your computer system, the Prime Minister has to sign it off and he knows your name. If you are the subject of one of these warrants, the Prime Minister knows your name because the Prime Minister is required to sign off the warrant.

The Government Communications Security Bureau is manifestly different from the police, and the reason it is manifestly different is that there is no judicial oversight. The only oversight is the Prime Minister, and that is why the Act gives the Prime Minister much more intrusive powers into the operation of the Government Communications Security Bureau than it gives the Minister of Police, for example, into the operational matters of the police. There is no one else who is serving that role of making sure that this agency is operating on behalf of New Zealand’s national interest.

There is a third category of intervention or interception that the Government Communications Security Bureau can do, which is when it is targeting foreign nationals and it wants to intercept their communications but it does not require a bug or any of those kinds of equipment. The Government Communications Security Bureau can do that without getting anything signed off by the Minister, and that was the case with the Kim Dotcom case. That does not mean that the Prime Minister can wash his hands of it. That does not mean that the Prime Minister can stand up in the House and go “Oh well, it’s got nothing to do with me. I’ve got no responsibility in that respect.” The Prime Minister has total responsibility.

In the third category of cases, under the Government Communications Security Bureau Act, when the Government Communications Security Bureau is intercepting communications—usually mobile phones or that kind of thing, where it does not need to put in place special equipment and, hence, it does need a warrant signed by the Minister—it does not mean that the Minister has no responsibility to make sure that the Government Communications Security Bureau is operating lawfully, because there is no one else. The only other person—and this is interesting—who has a responsibility in this respect, of course, is the Inspector-General of Intelligence and Security, who must be a retired High Court judge.

This brings us to the second point I would like to make, which is around the role of the Inspector-General. This report today on the unlawful activity of the Government Communications Security Bureau was done by the Inspector-General of Intelligence and Security. I would draw people’s attention to the annual report of the Inspector-General from 2011, which says that in particular the Inspector-General of Intelligence and Security assists the Minister to ensure that the activities of an agency—the Government Communications Security Bureau and the SIS—comply with the law. So the Inspector-General has a hands-on, operational function to make sure that the Government Communications Security Bureau and the SIS comply with the law.

What we know, because the Government has admitted it, is that in this instance the Government Communications Security Bureau did not comply with the law. So who bears the responsibility? It is the director of the Government Communications Security Bureau’s primary responsibility for acting unlawfully, it is the Minister, who did nothing, who did not make sure that the Government Communications Security Bureau operated lawfully, but it is also the Inspector-General himself, who, in his own words, assists the Minister to ensure that the agency complies with the law. So the Inspector-General himself, Mr Neazor, has identified in his own report that he is implicated in the unlawful activities of the Government Communications Security Bureau, because he did not prevent the Government Communications Security Bureau from operating unlawfully. So, given that, you have to ask yourself whether the Inspector-General is the right person to inquire into the activities of the Inspector-General and the Government Communications Security Bureau. The answer can only be no. We cannot have the person who is responsible for ensuring that the Government Communications Security Bureau complies with the law being the person who also investigates whether the Inspector-General did his job.

What did it say, in the Inspector-General’s report that was released today, about the Inspector-General’s role? It said nothing. It did not say whether he did his job. It did not mention his role at all. But, of course, it is his job, according to his own report, to make sure that the Government Communications Security Bureau follows the law. That is why the Prime Minister did the wrong thing when he appointed the Inspector-General to run the inquiry. We needed an independent person who does not have a conflict of interest in this case to run the inquiry. We did not need the Inspector-General to run this inquiry; we needed somebody who was independent of the process to run the inquiry. This is a fundamental principle in a democracy.

If we are to have spying agencies who operate in secret, who are otherwise not accountable to Parliament or the people, whose sole point of accountability to the democratic system is through the Prime Minister, then we need a Prime Minister who is applying themselves to controlling the activities of this agency, to make sure they are operating lawfully—and we do not have such a Prime Minister. We have a missing-in-action Prime Minister. We have a Prime Minister who is relaxed about our civil liberties, who does not care about the civil liberties of ordinary New Zealanders who get spied on by the Government Communications Security Bureau—because, remember, even when the Government Communications Security Bureau is operating lawfully, it can intercept telephone calls between foreign nationals and New Zealand citizens and residents; it is just not supposed to use the ones on the side of the New Zealand residents and citizens.

So we have an agency that has the right to spy on all of us and the only point of accountability is the Prime Minister, and he says it is not up to him and it is not his job. Well, I have got news for the Prime Minister: it is his job. The job of the Prime Minister is to protect our civil liberties in the case of the spy agencies whose sole point of democratic accountability is to the Prime Minister of New Zealand, and he sits here day after day in this House and tells us it has nothing to do with him. Well, it has everything to do with him, and he should front up and apologise to the people of New Zealand.

I think the best illustration of the Government’s position today was the speech by the Attorney-General, because that has got to be the weakest defence of colleagues and a Prime Minister that this Parliament has seen for a long, long time. But just to make sure that he felt he was judicially superior to the rest of us, he warned us not to go into the legal details here or offshore because we would be walking what he said was a very fine line. Well, right now, we are not walking any line at all, because we do not know what is going on, and the Prime Minister is the most guilty party in that level of State ignorance.

There will inevitably be a diplomatic fallout with the US surrounding this case. This is a Government that keeps on going offshore and talking about punching above our weight and being able to be carved apart in foreign affairs in terms of our numbers, and yet still perform and still be efficient, and the first time that there is a test internationally of its ability, it comes up found wanting. It is going to leave us as a laughing stock on the international stage. The FBI on the other side of the world and the New Zealand Police knew more about the residency status of Kim Dotcom than our top-notch intelligence agency. It is a shame to say this. These two agencies, the SIS and the Government Communications Security Bureau, are meant to evince the word “intelligence”. It means “information” and the capacity to gain it and acquire it in the national interest. Do they deserve such a name?

All this bungling means two things are going to happen. First of all, there needs to be a full-scale inquiry, because the Neazor inquiry does not answer any of the questions that, now, the public and the media are screaming out to have answered. The second thing is the Prime Minister had better face up with his Cabinet to the fact that their bungling and incompetence on this matter leads to, potentially, tens of millions of dollars of compensation going from the hard-working New Zealand taxpayers, whom they pretend to be on the side of, to a man called Kim Dotcom.

I am not going to waste the speech on the rest of that, but say this: this is a very profound issue. Public faith and confidence in our Government and its agencies has been deeply shaken. It is a long time since I have seen a media scrum where they are in total unanimous disbelief that this could be happening in their country. The junior whip can frown over there as though it is of no moment. Well, it is of big moment down in Taupō, I can tell you, because they will be paying out this compensation in time and they are as concerned as everybody else that we look like a First World nation, but I have never seen a media scrum so—not confused—bewildered that this could be the way you handle an issue like this. Internationally, our friends must be scratching their heads in bewilderment. What on earth has been going on?

The unlawful action of the GCSB is an issue that goes to the heart of our democracy. This is because the agencies that guard our freedom and security are given exceptional powers, and we do that grudgingly. They are given exceptional powers grudgingly. This is because they guard our freedom and security. We put immense trust in them to follow due process and observe both the letter and the spirit of the law. What the unlawful GCSB surveillance has revealed is that there has been systemic failure across a whole range of agencies—not just one, but a whole range of agencies—and, most important, the ministerial oversight has not just failed, it seemingly never existed. It never existed.

What we have had from the Prime Minister on this issue is simply dereliction of duty, another example of his “spray and walk away” approach to politics—“spray and walk away”—as though that will fix it. Of course he should resign. If any other Minister had been that incompetent, this Prime Minister would have fired him. And we are saying “Prime Minister, fire yourself.” That is how bad your performance has been. The public has been expected to swallow a most astonishing tale. Everyone but the PM knew what was afoot and what was going on. The most powerful man in the country claims that he was in the dark. Just down the road from his electoral office is one of the most plush mansions in the whole country, with one of the biggest characters this country has ever seen, and the office had been visited twice by Kim Dotcom’s staff, and the Prime Minister did not know. They have a massive $500,000 Guy Fawkes in Auckland, and the PM, the man who always has his finger on the pulse, did not know. Seemingly, all his colleagues over there did not know either. Who believes that? His negligence, evasion, and incompetence mark a new low in prime ministerial performance. Can you imagine Holyoake behaving like that, or Norman Kirk, or Muldoon, or, for that matter, Bolger or Clark? Can you imagine them taking those views, and treating those responsibilities in such a cavalier fashion? Can you imagine them behaving like that?

The public wants, and is entitled to, plain speaking and straightforward answers. We must now have a full-scale inquiry, with no stone left unturned, with all agencies involved. The police, the Department of the Prime Minister and Cabinet, the SIS, Crown Law, the Government Communications Security Bureau, and all the relevant Ministers must be asked to account fully for the part they have played in the fiasco. You cannot say it is a matter of the law—that they did not understand the law. Crikey! You have got all manner of immigration agencies and junior lawyers handling immigration matters, and they all understand what a permanent resident is. Even this man who cannot speak English all that well, but he is acquiring a lot of knowledge, now that he is living here as a permanent resident—he is a foreigner—understands the law better than our intelligence agency. Is that possible? Well, it defies credibility.

The Neazor report answers nothing. It raises more questions than it answers. What is at the heart of this fiasco? A Prime Minister who is a CV Prime Minister. He does not take the job seriously, but he loves travelling with all the security agents. He goes off to the mansions in Hawaii with a whole planeload of New Zealand security guys, and at whose expense? Well, I am talking to them right now if they are watching TV. We are all paying. He goes for a coffee uptown, along with four security officers. It is unbelievable. I have never seen that before. He loves the job, but when it comes to the responsibility—that is, the hard yards of doing the research, doing some work—no, no, no. This is a typical Merrill Lynch wide boy.

💬 Denis O’Rourke: Smile and spin.

Oh, smile and spin, and move on. Decision this hour, move on, next hour, next hour move on—never take responsibility because you do not have to have an enduring principle of accountability when you are a Merrill Lynch man. He would not read the police report on John Banks. He said he knew nothing about his rail shares. He had 15 meetings with the Government Communications Security Bureau this year—15 meetings—and we are asked to believe that Kim Dotcom never came up. Well, what on earth did that was more important? What were the other things that came up that were more important than Kim Dotcom, given that our relations with the United States are important?

It all comes down to the question of responsibility. Now is the time for our Prime Minister to take full responsibility and resolve this issue clearly, and have a full-scale inquiry. Every time he has answered questions in this House, he has been found wanting. “Mr Spray and Walk Away”, the man who loves three-party handshakes, the man who will go to the opening of an envelope, the man who loves mincing on the fashion walks, but when it comes to defending the integrity, the reputation, and the character of our country, he thinks it is of no matter whatsoever and that he should not even bother, even though he sits there with the warrant for both the SIS and the Government Communications Security Bureau. No substance is what the Prime Minister is evincing and indicating now, and the sooner his colleagues wake up, the better, because I am afraid that more of this behaviour means it is goodnight nurse for you at the next election.

I call Charles Chauvel. This is a 5-minute call, and I will ring the bell at 4 minutes.

This is a debate about accountability, and we have a Government that seeks constantly to avoid that accountability to the taxpayer. If we want an example in respect of the present matter, we need only to look at the timing that elapsed between the delivery of the Neazor report to the Beehive and its making public. That report was delivered to the Beehive at 10 a.m. today by the Hon Paul Neazor himself. It took until 1.42 p.m. for the report to be publicly released. It is quite obvious why that happened. There were two motivations. First of all, the Government wanted to put its spin on the report. It wanted to make sure that it had the agencies lined up as to the response, and to make sure that it had its tame bloggers lined up, so that they knew what to say, they knew how to manipulate the media, or at least try to, so that the Government’s side of the story would be the one that led the news.

But there was another motivation, and that was an attempt to avoid a debate in this place, to avoid a parliamentary debate on what was clearly an important current matter of ministerial responsibility and that ought to be debated in this House, and now, thank goodness, is being debated. The only reason it is being debated is that the deputy leader of the Labour Party was quick off his feet. He got a letter to the Speaker as soon as the report was released. But the timing of the release of the report, 18 minutes before the beginning of question time, is simply cynical. It just shows not only how this Government tries to spin its own lines all the time but how it tries to avoid accountability, particularly to this place. So it was willing to let the media have its side of the story, to start the spin machines going, but to do everything it could to stop a debate happening in this Parliament, where it ought to be happening, where there ought to be the sort of accountability that we see so rarely.

There is another issue about accountability, and that is the accountability of our security services to the Prime Minister, and then the Prime Minister’s accountability in turn to this House and to the people for taking that job seriously. We have just heard from Winston Peters a very apt description, in my view, of how cavalier the Prime Minister is about these matters. The Neazor report shows some disturbing things about the understanding by the Government Communications Security Bureau of its mandate. The Government Communications Security Bureau can lawfully conduct surveillance only in respect of foreign persons. An opening of the Act, a scan of the interpretation provisions, which are in section 4 of the Act, shows the reader who may and who may not be surveilled by the Government Communications Security Bureau. Only a foreign person can be surveilled. The definition of a foreign person is clear. It is a person who, amongst other things, does not hold permanent residence. Since the Immigration Act 2009 came into force, in November 2010, that has included the holder of the sort of visa category that Mr Dotcom holds. So this has been the law for years and years, yet our own security intelligence apparatus appears unable to construe and apply that law appropriately.

We have a Prime Minister clearly just conducting nominal oversight, never asking and never seeking to assure himself, as he should, given that he is the only effective oversight of these services, whether or not they are acting within their mandate. That relaxed, confident approach, which seemed to be so appealing initially, just does not cut it when it comes to the hard work of Government and protecting the interests of the citizen, and of the residents of New Zealand.

Finally, we have an issue of accountability generally over this Dotcom saga. It is a sorry saga. It has been characterised in the media as a Keystone Cops saga, and I think, unfortunately those of us who followed the litigation—

💬 Hon Trevor Mallard: “Key-stoned” Cops.

Ha! Those of us who followed the litigation in court would agree with that characterisation. Christopher Finlayson tried to draw a distinction between allowing agencies to conduct themselves with operational independence, and some sort of overbearing Muldoonist way of holding them to account. Well, that is a false distinction. All that the taxpayers of New Zealand are asking for is proper ministerial oversight of this matter, before the taxpayer is left holding the baby. And given the events that are revealed by the Neazor report and by the judgments of the court, we are in real danger of that.

I want to take just a brief moment to echo the very important messages that were delivered to this House by the Attorney-General, Chris Finlayson. One of those is the fact that great caution is required in this House, because there are currently proceedings before the High Court.

One of the things that has disturbed me is the suggestion, by some members on the other side of the House, that the Minister responsible for the Government Communications Security Bureau should be in charge and in control of operational matters on a day-to-day basis. To go down that track would be a very dark day not just for this House, but for this country.

The Attorney-General also, quite rightly, pointed out our international responsibilities and obligations in terms of fighting crime across the globe, and he made the distinctions very carefully around the two aspects—mutual assistance as very distinct from extradition. So in the air of caution, I want to leave it at that, but I want to just remind this House that this side is taking great care and great caution in being constitutionally proper.

I would like to take a very short call as well, in my capacity as chair of the Justice and Electoral Committee, essentially to endorse what has just been said by the junior Government whip and the Attorney-General before her.

I am concerned that Opposition members are jeopardising the integrity and fairness of our judicial system by seeking to make political capital out of proceedings that, in fact, I believe are currently before the Court of Appeal. That is inappropriate and regrettable—[Interruption]—and nothing in the bluster and interjections of Opposition members at this moment will in any way refute that point. So I simply wish to urge Opposition members to exercise better judgment and to respect the very important constitutional and judicial principles that are at stake in this issue. This must be dealt with appropriately. Members of this House should, above all, respect that.

Labour has a 10-minute call, but we still have one 5-minute call to go. So—

💬 Hon Trevor Mallard: Andrew Williams.

The ASSISTANT SPEAKER (Lindsay Tisch): No, on the list here, it is actually—

💬 Hon Trevor Mallard: Well, no. They didn’t call.

The ASSISTANT SPEAKER (Lindsay Tisch): No, they did not call. They should have called. They did not. I am calling Andrew Williams.

New Zealand First is calling for a commission of inquiry as our leader, the Rt Hon Winston Peters, has already said in the House this afternoon. We have heard of so much bungling on behalf of so many agencies in this country in the last 9 or 10 months over this Dotcom saga—including right to the top, including the bungling of the Prime Minister, and including the incompetent handling by the Prime Minister—that this needs an independent commission of inquiry.

Let us go back to the very beginning—let us go back to the very beginning. The Ōrewa community constable, Jason Homan, visited the Dotcom mansion the day before the raid. He knocked on the front door. He was welcomed in by Mr Dotcom. He was given a tour around the building, and they discussed Mr Dotcom’s security. He wanted to assist Mr Dotcom with his security. But what he did not let on was that he had a covert camera hidden on his body, and the whole time this community constable, who was supposedly there in Mr Dotcom’s interest, was actually filming in preparedness for the raid the next morning. The following morning at dawn helicopters start dropping out of the sky and 80 members of the Special Tactics Group of the New Zealand Police come off these helicopters—80 of them—and also via cars and other things coming up the roads, and they force entry into the mansion. They drag Mr Dotcom’s 27-weeks pregnant wife out on to the lawn in the rain at dawn. They terrorise the children in the house. They then find Mr Dotcom and drag him outside as well, and he is pushed down onto the ground where he sustains some injuries to some of his limbs that were stood on. There were police, supposedly, in this raid wearing T-shirts, jeans, and flak jackets, which is most unusual for the New Zealand Police, and there is speculation that some of those may well have been members of agencies from abroad, including the FBI—there is speculation on that.

This is the sort of thing going on in this country within a relatively short distance and in the Prime Minister’s own electorate of Helensville.

In the Prime Minister’s own electorate of Helensville—in his own electorate—this is all going on, while he is the Minister responsible for the GCSB—the spy organisation for this country. In his own electorate, this sort of thing is going on. That very same spy organisation did not even realise that this individual was living in the most expensive mansion in the Prime Minister’s electorate, worth $30 million, with 50 staff. How many houses in New Zealand have 50 staff? Not many. Maybe the Prime Minister has quite a few; he is probably the second in the country with staff. But for the mansion to be in his own electorate and not now admit to the fact that he knew of Dotcom, that people from Dotcom’s staff had been to his electorate office, that there had been numerous dialogue with his office about it, and for this Prime Minister to say that he really knew about all the intricacies of the details of this only in the last week or so, is balderdash—absolute balderdash. This is a cover-up—an absolute cover-up. The fact that the Deputy Prime Minister, as Acting Prime Minister, back on 16 August signed a warrant—while the Prime Minister was away at his baseball game in the United States—to provide for a cover-up to bury all the details is even more of an indictment on this Prime Minister that this is an absolute whitewash.

New Zealanders expect more of any Government—any Government—and in this particular case the Prime Minister himself should be standing down, stepping aside, and calling for a commission of inquiry. Any other Minister who was this incompetent in handling his portfolio would have been stood down while there was an inquiry. He should stand by the same measures, stand by the same standards, step aside, and let people come in and do a proper job. He should spend less time on the golf course, less time in his holiday house in Hawaii, and less time on the global stage getting photographs with everybody he can possibly get his hands on, and spend more time overlooking his own portfolios. New Zealand First calls for a commission of inquiry. Let us get on with it.

I note that the Prime Minister has this afternoon apologised to Kim Dotcom for the basic errors of his agency. What he has not apologised for is what is really the core of this debate, and that is his slackness in his oversight of that agency.

I would like to give many members of the House a little bit of a history lesson going back to 1977, when I had a notable appearance in this House, and was, in fact, arrested during debate on the New Zealand Security Intelligence Service Amendment Bill. The reason that I was arrested then was that I believed that there was too much power being centralised in the hands of one person—at that stage it was Sir Robert Muldoon—and I did not believe that there were systems around them to ensure that there was proper supervision of the Prime Minister.

Since that time there have been some changes made that have improved the legislation slightly, but, more important, ever since that time there have been Prime Ministers who have treated their role in this area diligently. They have worked diligently. They have been briefed. They have read their papers. They have asked the questions that needed to be asked. I can remember one occasion when I was with Helen Clark in her car, early in her prime ministerial time, and both the driver and I got booted out of her car. She borrowed my phone, because I had a Vodafone phone that was properly secure and she only had a Telecom phone, so that she could be properly briefed on an urgent matter. It was so important that she did not want to wait for half an hour to get to a secure landline; she wanted to do that.

The question I have got is whether this Prime Minister interests himself at all in the work of his security agencies, or is he prepared to say “OK, boys, just go and do what you want. OK, boys, just go and do what you want. I’m not going to ask, because if I ask, I might know. And if I know that you’re doing something wrong, I’ll be in even worse trouble.”? That is what the situation is here. The Prime Minister was not prepared to apologise to this House for what he knew happened. He was not prepared to go into the detail in Parliament, the place where he is meant to be held accountable. He runs away. He does not front up. He does not front up in this House and apologise for the fact that he is not doing his job properly. He is meant to uphold ministerial standards. That is his job. He is the Prime Minister. He is meant to be above all others.

And, in this case, his plea of ignorance is just not good enough. Ignorance is not an excuse when you are the Prime Minister who is meant to be supervising an agency, an agency where the relationship is much closer, and the supervision necessarily much closer, than, for example, with the police or any other Government agency. This stuff very rarely gets anywhere near a court. There is very rarely a check or a balance on the power of the Prime Minister and these agencies. Our entire democracy depends on his agency doing its job properly, and for that to happen the Prime Minister must supervise it. To say that he cannot know anything about the operations is just horse shit. It is just absolute nonsense. The Prime Minister must know about the areas where there are operations going on. The Prime Minister has to know that there are matters that he should be looking at.

We have given this Prime Minister a lot of support in this area. There is an enormous amount of trust that goes to every—

💬 Scott Simpson: Better than that.

I agree with that member there. The Prime Minister should be better than that. I agree with that member. Every other Prime Minister going right back in my entire time in Parliament has been better than that. Which member is that?

💬 Dr Megan Woods: I’m not sure.

The one with glasses, next to—

💬 Dr Megan Woods: Scott Simpson.

It was Scott Simpson, I am told. Scott Simpson says we deserve better than that, and I totally agree with him. We deserve a Prime Minister who reads his documents, a Prime Minister who gets briefed. What we have seen here is a debacle, an absolute failure of a Prime Minister to run a spy agency with integrity. It is his job to run it with integrity. It is his job to look carefully at what it is doing, because he is the democratic check on the system. And when he does not do his job properly, as he clearly has not done now, then the democratic check that should be there is absent. The agency runs amuck, it breaks the law, and it spies on people it is not meant to be spying on.

There is another question. There is another question that needs to be asked. We know that the information has been flowing. We know that the assistance has been flowing to the United States. Is it correct—is it correct—that US agencies were also involved in covert surveillance within New Zealand, with the full knowledge of the Prime Minister’s agency? Did a foreign agency act contrary to New Zealand law? Did a foreign agency act contrary to New Zealand law, with the connivance of an agency for which the Prime Minister is responsible? If that is the case, then I expect that any Prime Minister with integrity will be a position where they cannot survive—where they cannot survive—because it is the role of the Prime Minister to make sure that these “boy’s own” tricks do not occur. It is his job to make sure that the spies do not run amuck. They have an enormous amount of power, and if the suggestion is that overseas agencies—as well as our own Government Communications Security Bureau—were acting covertly in New Zealand, with the connivance, with the assistance, with the knowledge of our security agencies, if that was occurring, then that is even worse than what has occurred here.

The other question that we still have not heard any confirmation of is whether, as was alleged in the Dominion Post this morning, the immigration file for Kim Dotcom was, in fact, given to the police before the raid—well before the raid—by the Immigration Service. It is a pretty basic question: was it given or was it not given? And if it was given—the Immigration Service says that it was—what we want to know is whether anyone bothered to read it. Did anyone bother reading the file that was supplied? Did Maurice Williamson? Maurice is here. Maurice knows a bit about land information, and that sort of area. Jonathan Coleman knows a bit about that area. Simon Power knows a bit about that area. I will just tell you what used to happen. In the old Government, if two Ministers disagreed and one overruled the other, then you made a file note and the Prime Minister had a look. When you had a difference, when you had a Minister overruling another Minister and it was something that was important to the Government, you wrote it down. You wrote it down. Maurice Williamson is nodding. You know what I think happened? I think the Prime Minister did not read it. I think the Prime Minister did not read it. Well, he did not read the police report, wilfully—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member, but his time has expired.

I want to just touch on a couple of the comments made by the previous speaker, Mr Mallard, and, in particular, his claim that the Prime Minister was not prepared to front up. I think this is something that needs to be addressed, because what the member is inferring is that the Prime Minister should act—

💬 Hon Trevor Mallard: I raise a point of order, Mr Speaker. I cannot “infer” anything in my speech. I think you mean “imply”.

I infer from those things that the member feels that the Prime Minister should have taken action before all the facts were before him, and, indeed, he called for an apology. But the prudent thing to do was to conduct an inquiry, and to need to have the inquiry to establish all the facts. The facts are now on the table. The Prime Minister has apologised to Mr Kim Dotcom and has expressed his disappointment in the events that have transpired.

But I also think it quite rich for Mr Mallard to say that the Prime Minister should take control of these agencies, because Ministers—as that member well knows—do not run agencies. In fact, I well recall responses to oral questions in this House when Mr Mallard was the Associate Minister of Transport, and calls for him to take control of an issue related to Air New Zealand and the Engineering, Printing and Manufacturing Union in respect of a maintenance dispute at Christchurch Airport. He was at very great pains to point out that it was absolutely not a Minister’s role to interfere with the day-to-day running of Government agencies—so I sense, at least, an inconsistency—or, for that matter, a State-owned enterprise like Air New Zealand, which would have been even worse, frankly. So the member says one thing in Government, and another thing in Opposition.

But it is clear, and, indeed, the lawyers acting for Mr Dotcom have indicated, that information contained in the report that was released today could be used as evidence in the extradition hearing that is currently before the High Court. As such, it would be entirely inappropriate for any member of the Government—or this House, frankly—to comment on the matters that may yet be before the court. There are very strict protocols in respect of the legislature’s boundaries in respect of judicial proceedings—and vice versa, I should add—and I think Minister Finlayson very clearly explained the reasons why and the aspects of the report. I just want to endorse those comments by the Attorney-General and say no more about it.

The debate having concluded, the motion lapsed.