Government Communications Security Bureau and Related Legislation Amendment Bill

Part 1 of the Government Communications Security Bureau and Related Legislation Amendment Bill deals with amendments to the Government Communications Security Bureau Act 2003. I thought it would be helpful if I outlined to the Committee 12 key aspects of the changes that are set out in the bill. The purpose of these changes is to provide a clearly formulated and consistent statutory framework, to create a greater oversight regime, and to update the Act to respond to the changing security environment.

As I say, there are 12 key aspects. The first deals with definitions and interpretation. If one looks at section 4 of the 2003 Act, one sees that it contains definitions of various terms that are now outdated and require replacement, amendment, or repeal. They include definitions of “computer system”, “foreign communications”, “foreign intelligence”, and “network”. The amendment bill inserts a new definition for “information infrastructure” to replace the definitions of “computer system” and “network” and to take into account the new ways in which communications are carried and stored. The definition is a broad one, and it is there to make sure all the ways of communication are indeed captured.

The next key aspect I wish to tell the Committee about deals with clause 6. Sections 7 and 8 of the 2003 Act are replaced. The first is the objective of the Government Communications Security Bureau (GCSB). The current objective section is a lengthy statement of what the bureau contributes to in the interests of New Zealand. The bill proposes an objective clause based on the current section but greatly simplified and clearer. So the bureau will contribute to the national security, international well-being, and so on. Then we have a replacement for section 8, dealing with the functions of the bureau. Section 8 of the 2003 Act sets out three functions: foreign intelligence, information assurance and cyber-security, and cooperation and assistance to other entities. What has happened here is that this aspect of the functions of the bureau is spelt out a lot more clearly.

The bill repeals and replaces section 8 with four new sections, sections 8A to 8D. They set out the three functions more clearly and specify the limitations and restrictions that apply to each of those functions, so foreign intelligence is covered by section 8B, information assurance and cyber-security by section 8A, and cooperation and assistance to other entities by section 8C. It is very important to focus on section 8C and the greater restrictions and limitations that are put around this function. The agencies that can be assisted are limited to three named agencies and the bureau is going to be subject to the limitations, restrictions, and oversight that the requesting agency is subjected to. The Hon Mr Dunne has a Supplementary Order Paper, Supplementary Order Paper 308, that is going to tighten up that aspect even more.

I then come to the principles of the legislation. In actual fact, the 2003 Act does not contain any principles, but the bureau, as a core public sector department, comes under the provisions of the State Sector Act 1988, which means it is subject to the Public Service Code of Conduct. Section 8CA sets out the principles underpinning the performance of the bureau’s functions. An explicit set of principles is inserted, and these are modelled on the principles inserted in the New Zealand Security Intelligence Service Act 1969.

💬 Andrew Little: Who’s going to enforce them? How are they going to be enforced? Who will know?

Those principles include acting in accordance with the law and human rights standards and in a manner that facilitates effective oversight. Another important point, I say to Mr Little, is that there is a requirement in section 8CA that the director must regularly consult the Leader of the Opposition.

Then we have provisions relating to the appointment of a director. The current Act provides that the director is appointed by the Governor-General on the recommendation of the Prime Minister. Cabinet decided in 2010 to involve the State Services Commissioner in managing the appointment process. This was done through the Cabinet Manual, pending an opportunity for the review of the legislation, and so the bill incorporates the Cabinet Manual process into statute, making the management of the appointment more transparent. The same process provisions are going to be inserted into the New Zealand Security Intelligence Service Act.

The next clause, clause 12, is a critical clause dealing with section 14. The bureau is not to target New Zealanders’ private communications. The current section 14 was intended to codify the basic premise underpinning the bureau’s operations. However, the way the basic premise was incorporated into the Act meant that it applied not only to the foreign intelligence function but also to its two other functions—unfortunately, some sloppy drafting there. So the bill retains the fundamental premise but section 14 is amended to make it clear that it does not apply to cyber-security or to cooperation and assistance. Where New Zealanders’ communications are to be intercepted, then additional safeguards have been put in place.

The next aspect concerns warrantless powers. The current Act provides for the interception of communications without a warrant in certain limited circumstances. Those warrantless powers are retained, but are further restricted. The bill makes it clear that the warrantless powers cannot be used if a New Zealander is involved. The next provision I want to talk about concerns warrants and authorisations. I refer the Committee to the existing sections 17 and 18. The bill repeals those provisions and replaces them with clearer and more consistent provisions set out in a better order, and I refer honourable members to sections 15A to 15F, in clause 14. Significant new limitations are added, in particular a requirement that any warrants involving New Zealanders must be issued jointly by the Minister and the Commissioner of Security Warrants, and, more important, that privileged communications—legal, medical, and religious—as set out in the Evidence Act 2006, cannot be targeted.

Under the existing legislation there is no requirement for record keeping, but under the proposed legislation the information must be recorded for every warrant and be put in a statutory register available at any time for the Inspector-General of Intelligence and Security and the Minister to review. Mr Dunne’s Supplementary Order Paper will provide some further information in that regard.

Very important, under the existing legislation on the subject of immunities, there is an immunity provision, but its effect is uncertain and unclear. The new legislation tightens this up, and there is an immunity provision that, basically, is modelled on the Search and Surveillance Act 2012. That immunity provision is not absolute. A bureau employee will still be subject to legal proceedings if he or she acts in bad faith, unreasonably, or outside their powers.

I have two final points. One concerns incidentally obtained intelligence. The current Act allows intelligence about New Zealanders that is incidentally obtained during foreign intelligence operations to be communicated to other people if it relates to serious crime. Section 25 of the Act is replaced to make it clearer when, and with whom, such intelligence can be shared. The intelligence can be communicated only to public authorities.

And, finally, there is the issue of protection of personal information. The bureau is currently exempt from principles 1, 5, 8, and 9 of the Privacy Act 1993. In 2011 the Law Commission recommended that those principles should apply, and so the bill addresses that issue. The director will be required, in consultation with the Privacy Commissioner and the Inspector-General of Intelligence and Security, to formulate a policy on the protection and disclosure of personal information that complies with those principles. So they are the 12 key aspects, and I think it would be very helpful if we could address those.

The last point in that 12-long list from the previous speaker, Chris Finlayson, is, I think, particularly relevant in light of what happened today in the protection of private communications and private property. We had the Prime Minister just 2 weeks ago telling us that he had nothing to do with the handing over of a journalist’s private communications, and here we have him today, knowing that the chief executive officer of his own department, whom he seems not to talk to at all, has actually been in the possession of emails of a journalist and Peter Dunne for a very long time. Going through that episode just emphasises what this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, is all about. It is about the balance between security and privacy, and if there was one incident of that in the past few weeks, it was that on 31 July—last week—the Prime Minister said something, and something else was the case when they dumped all those emails on Friday. That really is the reason why we are not supporting this bill.

This bill has been rushed through. It has not been informed well enough. It has not stood the test of what we would expect in order to change the legislation in the way that it actually has been. We, for example, asked for the SIS, the New Zealand Police, and the Ministry of Defence to appear before the Intelligence and Security Committee. None of those agencies was permitted to appear before the committee, because the chair, who has the casting vote, said he did not want them to. Why? Because he wanted to rush this legislation through without us being able to get much better information. And that is the reason that the balance between privacy and security is completely the wrong way round.

The Prime Minister says that, as part of this bill, we have all the checks and balances there. But let me tell you this: the Prime Minister, as we found out earlier this year, appoints the head of the Government Communications Security Bureau (GCSB) and the SIS. That person happens to be his friend and meets with him one on one without anybody else around. One on one they meet together. The Prime Minister also sits on the oversight committee, the Intelligence and Security Committee. He chairs that committee, he has the casting vote, he sets the agenda, and if anybody wants to put any other item on that agenda—as Russel Norman and I well know—of course it is voted down. It is immediately voted down. The Prime Minister also appoints the Inspector-General of Intelligence and Security, who looks into these affairs, and he appoints the Commissioner of Security Warrants, who issues the warrants to spy on New Zealanders.

I do not want to impugn the integrity of those people who have been appointed to those positions, but what we have is a system that is not about checks and balances; it is about one man holding that authority. And if there is any demonstration of how that authority can be abused, it has been in the last few weeks when that Prime Minister blamed a contractor for handing over emails and phone records. Today what we are finding is that it was not about a contractor; it was actually about the Prime Minister’s own office asking for those emails and those phone records. Not only that but those emails and phone records came in and were held by the Department of the Prime Minister and Cabinet for over 3 or 4 weeks without the Prime Minister being told. Well, we are told that by the Prime Minister. There are only three options, really: firstly, that the Prime Minister is not telling the truth about being informed by the Department of the Prime Minister and Cabinet; secondly, that he is woefully ignorant of what is going on in terms of what is actually happening, and that person is not handing over the information he needs, which means that it is an incompetent department that he is running; or, thirdly, that he has actually explicitly told people: “Don’t tell me. I don’t want to know.” because it is a whole lot better not to know. He did this with the John Banks report by saying: “I don’t want to read that police report, because then I’ll have to know, and then I’ll have to do something about John Banks.” [Bell rung] Mr Chair—

The CHAIRPERSON (Eric Roy): I am just going to make a comment, if the member would like to resume his seat. I understand that this is a matter about which there is some contention, but the standard in Committee is that we are debating Part 1. I will give the member another call, but we ought to be debating Part 1. This is not a general debate.

Thank you, Mr Chair. I am getting to Part 1. It took a little longer to get through the context to get to Part 1. Part 1 is about the appointment of the head of the GCSB. What we are saying is that we are submitting Supplementary Order Paper 305, a Supplementary Order Paper that calls for an independent, wide-ranging inquiry within 1 month of this law passing—if, indeed, it unfortunately does pass. What that would mean is that an inquiry would be set up. The terms of reference would be agreed right across Parliament. The inquiry would have at least three persons on it—persons of standing, people who are able to command respect in their fields. Our Supplementary Order Paper would also introduce a sunset clause into this bill so that the bill would expire within 12 months, so that an inquiry would be able to go through. It would be able to have the appropriate amount of consultation, we would be able to draft and push through a new law based on that inquiry, and the current legislation would simply sink into the sunset, as “sunset clause” suggests. That enables us to have the law round the right way, rather than the wrong way.

What we are trying to do now is to charge ahead and fix a bill that is being rushed through in response to a political problem, not a bill that comes from the good evidence and good recommendations that would come from an inquiry. That has been our position from day one. It has been our position from the end of last year. Unfortunately, we are not likely to get this law stopped, because Peter Dunne, who is here in the Chamber listening to this, has given Mr Key—what is the expression—he has sold his vote, and Mr Key was a willing buyer of his vote. As Mr Key said to me: “We need only one vote to get across the line.” This is what he means by consensus: “Yes, you can come in with us if you like, but, actually, I’ve got the votes, so you don’t need to.” That is consensus. Is it picking up the phone? No. Is it office to office communication? No. Was there any form of communication between us initiated by Mr Key because he wants this bill to have more cross-party support? No, absolutely not. He has got that vote, all he wants is that vote, and it is just about getting Mr Dunne, the willing seller of his vote, across the floor.

It is deeply ironic that Mr Dunne right now is deeply immersed in the current goings-on and the shenanigans of this Prime Minister, who is misleading Parliament and misleading the public—

💬 Mr DEPUTY SPEAKER: Order! Come back to the bill.

—about his role in this bill. Mr Dunne is still supporting this legislation. He is supporting Part 1, including the appointment of the head of the GCSB by the Prime Minister, despite what has happened and despite the fact that his personal emails have been accessed. Who knows whether they have been looked at, because the GCSB, the subject of the bill we are debating here today, certainly has the powers to open attachments. I have no doubt about that. The Department of the Prime Minister and Cabinet might not be able to open an attachment, but I can be very sure that the GCSB has those sets of skills that enable us to do that.

Supplementary Order Paper 305 does what we believe is the right thing to do. It starts by providing for a proper inquiry into our intelligence agencies—not just the GCSB but right across the board. It brings to the fore something that we have not had an independent inquiry on since 1976. That was the last time we had any independent inquiry into our intelligence agencies. Many, many people are saying to me that this is exactly what we need to do. From there we move to the legislative change that is necessary to set up a structure that would have the confidence of New Zealanders, because right now this bill certainly—

I just want to pick up where David Shearer left off, about the fact that what the Government would purport that this Government Communications Security Bureau and Related Legislation Amendment Bill does is, in fact, restore the confidence in the Government Communications Security Bureau (GCSB) that has been lost. The reality is that, under the watch of John Key, public confidence in the GCSB has dropped to an all-time low. The reality is that this bill, and in particular Part 1 of this bill, will do nothing to restore the confidence of New Zealanders in the GCSB. In large part, that is because the Prime Minister has said, and claimed right throughout this debate, that this bill does not extend the powers of the GCSB. That is a completely laughable claim. Almost every submitter who came before the Intelligence and Security Committee, the statutory committee—every submitter bar one who came in front of that committee—said: “This extends the powers of the GCSB, and there is no case being made for it.” Not only is the Prime Minister just plain wrong and misleading New Zealanders by trying to say that this is just a clarification of the legislation, that is what the explanatory note of this bill says; it says this is a clarification. It is not. It is an extension of the powers of the GCSB without justification from this Government.

When we look at the case that the Government has made for this, we see that it knew about problems with spying—arguably illegal spying—last year. Was there an urgent piece of legislation put into the Parliament saying that New Zealanders’ lives were in danger and we needed to ensure that the powers of the GCSB were extended? No. The Government tried to cover that up initially, through the Prime Minister. When, eventually, it was forced out into the open, we went through the process that we went through to get this bill up now, and then the Prime Minister had a sudden rush of urgency. That is when John Key suddenly decided that the whole thing was incredibly urgent, because it was time for him to stick a band-aid over the wound to this Government that is the GCSB.

When Chris Finlayson stood up earlier on he was running through his list of 12 commandments, and when he came to new section 9 in clause 7, about the appointment of the Director of the GCSB, he said: “Here we will finally codify the situation we have where the State Services Commissioner is the person who advises the Prime Minister on the appointment of the Director of the GCSB.” Well, if only that had been the case. If only that was what John Key had done when he appointed Ian Fletcher, except he did not. He got on the phone to his mate and told him to ring the Chief Executive of the Department of the Prime Minister and Cabinet—who, I notice, Mr Finlayson, is not mentioned in new section 9 in clause 7 of the bill. There is nowhere in there that says that the appointment of the Director of the GCSB will happen after the Prime Minister calls his mate and tells him to ring someone who is on the appointment panel to get some advice. That is what John Key did this time around. It is all very well for Chris Finlayson and John Key to say: “We’ve got this process now around the appointment of the Director of the GCSB that’s so much more transparent.”, but the reality is that what is put in new section 9 here today is actually the very thing that John Key rorted—the very process that John Key rorted when he made that phone call to Ian Fletcher, when he got his mate appointed.

Why is that important? Why is it important that we have some confidence that the Director of the GCSB is appointed in a transparent way? It is because more often than not it is just the Director of the GCSB and the Prime Minister who are making the decisions, who are in the room, having the conversations about New Zealanders’ rights. Today, tonight, in this piece of legislation the power of the GCSB is extended explicitly to spying on New Zealanders.

💬 Hon Anne Tolley: Which bit?

“Which bit?”, says Anne Tolley, “Which bit?”. Read the bill—read the bill—because that is what is there. Explicitly this bill does that. It starts, Mrs Tolley, right at the start, with a change to the functions of the bureau. It starts, right at the start, to expand the powers. New Zealanders—most New Zealanders—accept the fact that we need security intelligence agencies. We need agencies that are able to ensure that New Zealanders’ national security is protected. But what New Zealanders want reassurance about is that those powers will not be abused and misused, and that there is proper oversight in place. They want to know that as we move into a new era of technology, where New Zealanders make great use of that technology, their every communication will not be spied upon. They want to know that their privacy will be protected in this new age. What we see in this legislation is, in fact, that the definition of things called “information infrastructures” are broadened out—there they are, they are broadened out—so that that definition covers everything.

There is something in there that is effectively location data. Almost every person in this Chamber and watching this on television will have some kind of smartphone or access to some kind of smartphone that has location data on it. From today the ability is there for the Government to be able to use that data. Right around the world—and this is one of the things that this bill completely fails to take into account—people’s attitudes around the privacy of their electronic information are changing and evolving. People are beginning to understand more and more about the reach of the State into what can happen with their electronic data. At that very time, that is when the National Government decides it is time to expand the powers of the GCSB so that it can roam freely about electronic information provided by New Zealanders.

💬 Hon Anne Tolley: Rubbish! Which bit—

It is not rubbish, Mrs Tolley, and it is time that the National Government actually listened to what New Zealanders are saying—actually listened to what New Zealanders are saying—about the privacy of their communications. What New Zealanders want is to have security intelligence agencies that have the powers to do the job that is needed to ensure that New Zealanders’ safety is protected. But they want to make sure that that is balanced with proper oversight and with protection of New Zealanders’ privacy. What this bill does is get that balance wrong. The Law Society came to the committee and said that the balance is wrong. The Human Rights Commission came to the committee and said that the balance is wrong. The Privacy Commissioner wrote to the committee and said that the balance is wrong. New Zealanders from all walks of life are looking at a Government that no longer cares about their privacy, and that no longer cares about getting that balance between security and privacy right. That is the major problem that this side of the Committee has with this legislation.

When we look at the clauses in Part 1—in particular, the changes around the functions of the GCSB—we can see in clause 6, section 8C, a significant change in the way that the work of this agency is done and why it is now cooperating with other agencies to facilitate their functions. What is clear is that it can do that for anything—it can do that for anything.

💬 Tim Macindoe: This is a load of rubbish and you know it. Absolute claptrap.

Very defensive, Mr Macindoe. He will not get a call. He will not get a call. Sit down—sit down. Tim Macindoe will not get a call, because the National Party does not want to front up to New Zealanders on this legislation. Section 8C in this bill expands what agencies can work with the GCSB. The question for Mr Finlayson and National members is what happens with that data. What happens with that information? Will New Zealanders’ information be retained in New Zealand, or will it be available for other countries to look at? That is the question that New Zealanders are asking. [Interruption] Well, Mr Finlayson does not appear to know the answer, Mr Mallard, because he will not get up and be honest with New Zealanders about the expansion of these powers and what they mean.

If we look at the other parts of the functions of the bureau, what this bill does is say to the GCSB that it now has a wide mandate. Its mandate now goes beyond foreign intelligence functions; it goes into cyber-security. And it goes into cyber-security without the proper checks and balances that New Zealanders would expect. If you would allow me just to briefly mention something in Part 2, because it is relevant to Part 1, you go all the way through this bill with all the expansion of powers, and then you get up to section 15A, which is inserted by clause 14 of the bill. And just to make sure that we all know what is going to happen with this bill, it says that it applies notwithstanding “anything in any other Act.”—notwithstanding “anything in any other Act.” That is any Act—it could be the Crimes Act; it could be anything. That is how loosely this has been defined.

On this side of the Committee we oppose this legislation. David Shearer has proposed an excellent Supplementary Order Paper 305, which would actually see a review of all of our security intelligence agencies so that we could get legislation that New Zealanders can have confidence in, so we can restore some confidence to security intelligence in this country. Under John Key’s leadership it has reached an all-time low. It will stoop even lower if this legislation passes today. I urge all parties, including Mr Dunne—

I rise on behalf of the Green Party tonight to oppose this Government Communications Security Bureau and Related Legislation Amendment Bill. We are focusing our comments here on Part 1, which is probably the most substantial part of the bill. I have put up a series of substantial amendments to Part 1—10 separate amendments that try to deal with some of the worst aspects of this bill. Although it is hard to fix this bill, because it is fundamentally flawed, we have put up a series of amendments to try to improve the bill.

The first amendment that I want to talk about is the amendment in Supplementary Order Paper 316, which is about including metadata in the definition of communications. Metadata, of course, is like the data about data. If we were to use the recent example of Mr Dunne’s emails, when the Henry inquiry accessed Mr Dunne’s email logs without his permission, it accessed his metadata—so that was whom he sent emails to, whom he received emails from, the subject of those emails, the time they were sent, and whether there were attachments—but that did not include the actual content of the emails. This is what is called metadata. There are those from the Government side who argue that the definition of communication includes metadata, but I think that that is not really very clear. So what we have suggested in this amendment, using Supplementary Order Paper 316, is to make sure that metadata is included in the definition of communication.

I think that the recent experience of the Dunne and Vance emails is relevant to this amendment. The reason why it is relevant to this amendment is that in the mind of the Government—in the mind of the Prime Minister’s office and the Department of the Prime Minister and Cabinet—when it was considering the Henry inquiry, it drew a distinction between Mr Dunne’s metadata and the content of Mr Dunne’s emails. So it thought it needed further authorisations in order to read the content of Mr Dunne’s emails than it needed to read the metadata around them. So even though the Government has at times argued that metadata and data are treated the same by this piece of legislation, when it came down to applying some kind of principles—whatever principles Mr Henry had in mind when he conducted his rather unusual inquiry—in practice, what we saw was that the Prime Minister’s office and the inquiry established by the Prime Minister clearly differentiated between Mr Dunne’s metadata, which they did not seek his consent to access and which they just stole from his email accounts, and the content of Mr Dunne’s emails.

So when we come to consider this bill, what is clear, I think, is that we do need to establish right up front that the definition of communication needs to include metadata, because we have seen from the practice of this Government just in recent weeks that this Government believes that it can have access to all our metadata and it does not need to ask us. It can go into my email account or anyone else’s email account and steal our metadata—whom we have emailed and whom we have not—because the Prime Minister believes that that is his right. It is his right to steal our metadata if he is running some inquiry into some security breach; therefore, he can go in and read your metadata—whom you sent emails to and whom you got them from, whom you phoned and whom you did not phone—rather than the actual content of those phone calls. So I believe it is important that we make the amendment to make sure that it does include metadata at this point.

The second amendment of the 10 amendments to this part that I would like to talk about for the moment is an amendment about deleting new section 7, in clause 6 of the bill. This is essentially to keep the existing objective of the Government Communications Security Bureau (GCSB). The purpose of this is that a fundamental aspect of this bill that we have in front of us tonight is to transfer the GCSB from what was supposed to be a foreign-focused agency—it was supposed to be turning its surveillance activities on the rest of the world, not on us. But under the bill that the Government is proposing here tonight, it is proposing to turn the powers of the GCSB against New Zealanders. That is what the significance is of new sections 8A and 8C. Basically, this agency, with all these powers to intrude into our lives and to read our emails and listen to our phone calls and track our movements, can now be used against New Zealanders, whereas previously, when it was established under the 2003 Government Communications Security Bureau Act, it was very clear that it could be used only against offshore interests and people from overseas. Section 14 of the existing 2003 Act is very clear that it could not be targeted at New Zealanders.

Unfortunately, of course, what we saw in over 80 examples is that the GCSB did target New Zealanders, even though it had no lawful authority to do so. So it broke the law and illegally targeted New Zealanders. What it has done is say: “OK, we broke the law, so we are going to get the Government to change the law so we can keep doing what we were doing before, even though it was unlawful under the old Act, and no one gets prosecuted.” It is a great agency! I mean, if the rest of us went and broke the law, you would think that someone might be prosecuted, but the GCSB gets rewarded. The Government changes the Act to suit the GCSB, so that it can spy on us. So what I am proposing in my amendment in Supplementary Order Paper 317 is that we keep the existing objective of the GCSB—that is, that it is externally focused. It is not meant to be spying on us. It was never designed to spy on us. The whole idea of the GCSB was that it was externally focused, and it was not about that. So we think that that is an important change to make.

The third amendment that I would like to talk about to try to improve this very flawed legislation is the amendment around clause 6 in Supplementary Order Paper 314. Essentially, what we are doing here is saying that if new section 7 is retained, then this removes the final line, paragraph (c), which provides that one of the objectives of the GCSB is about the economic well-being of New Zealanders. The problem is that if we say that one of the objectives of the GCSB is about the economic well-being of New Zealand and we give the GCSB the power to target us with its surveillance and its attacks on our privacy and our freedom, then it now has a very broad scope. There are all sorts of things that we would do that might threaten the economic well-being of New Zealand. For example, if I were to mention that half of the rivers in New Zealand are polluted, this could well be seen as threatening the economic well-being of New Zealand. In a certain sense I can understand that argument. It does not mean to say that I should not say it; it is true and it is important that we campaign to clean up our rivers. But, in light of recent events, clearly by my drawing attention to the fact that we have very polluted rivers in New Zealand, some—and particularly those in the GCSB, who are very keen on targeting people like me—would say: “Well, you are threatening the economic well-being of New Zealand.” So what we are trying to say is that the GCSB should not have that ability. It should not be a rationale to attack us, by threatening the economic well-being of New Zealand. We want to keep the GCSB externally focused, not coming after us.

The fourth amendment that I would like to talk about in this slot is about trying to restrict the ability for intelligence to be shared with any person or office holder. This is my Supplementary Order Paper 315. This amendment removes “the ability for the GCSB to report information and provide intelligence gathered to ‘any person or office holder (whether in New Zealand or overseas) authorised by the Minister’.” This is a very important amendment in light of the Snowden revelations. What we discovered from the Snowden revelations is that the GCSB, which is presumably the agency, is providing vast amounts of data to the National Security Agency. In the information that has been revealed by Snowden, we now know that New Zealand is one of the sources of all the data that is provided to the National Security Agency about internet traffic, phone traffic, and all the rest of it, and presumably the GCSB is providing that information, which largely comes out of Waihopai, to that agency.

So what we are trying to do here in this amendment is say: “OK, even if you do gather this information—all this data about all this information that is passing through New Zealand—we are trying to restrict the ability of the GCSB to pass it to its American masters.” If the agency says it wants all this information, which obviously it does if Snowden is right—if the leaks from Snowden are right, and there is no reason to think that they are not, because they have been verified by the US Government in all cases where we could verify them—then what the GCSB is doing is intercepting all of this data out of New Zealand, and we do not exactly know how, and passing it offshore. So what we are trying to do with the amendment around Supplementary Order Paper 315 is to restrict the ability of the GCSB to pass that information offshore to any person or office holder, whether New Zealand or overseas, authorised by the Minister. This is to try to prevent the Minister saying: “Oh, well, the American agencies say that they want all the data that is coming down off the satellites and passing through Waihopai. We are going to pass all that data to them.” We are saying: “No, we do not want you to become a spy for one of the global grid.”—the spying grid that the United States has now established at a global level to monitor all internet-based traffic and all of the emails that are passing around the world through the internet system. We do not want the GCSB to be performing that function.

The reason is that it is incredibly damaging to New Zealand. What we have seen, for example, mostly recently is that Germany has now withdrawn its agreement with the United States about sharing security matters, and New Zealand is now identified as one of those countries that is sharing this data on all of its allies with the United States.

We have just had two appalling speeches—one from a member who should know much, much better, and I believe does, and one from a member who has absolutely no idea. What I can say is that proper oversight begins with a clear and consistent statutory framework, and that is what this Government Communications Security Bureau and Related Legislation Amendment Bill provides for this House and for the public of New Zealand.

I know that Grant Robertson, for political purposes, has deliberately been very cute with the facts. He knows—and if he picked up the phone to New York, his ex-leader and mentor would tell him—that there is an absolute need for this legislation. Grant Robertson and Phil Goff both know what the threats are out there. This is a dangerous world that we are a part of, and there is an absolute need for the Government Communications Security Bureau (GCSB) to protect New Zealanders when they travel abroad, to protect New Zealand interests, and, basically, to make this a safer place.

💬 Grant Robertson: Nobody’s denying that, Jonathan.

Grant Robertson now says: “Nobody’s denying that.” In actual fact, he got up and denied that. What he said, which was totally incorrect, is that this bill widens the powers of the GCSB, and that it allows the GCSB to spy on New Zealanders. That is not correct. It is totally untrue. What this bill does is that it actually narrows the powers of the GCSB. [Interruption] They know it, but they do not want the public to understand the truth.

If you look at those 88 cases over the last 10 years where the GCSB has had to spy on New Zealanders, they have been cases where New Zealanders have, unfortunately, been involved in, or associated with, terrorism, with research into weapons of mass destruction, with people-smuggling, and with drug dealing. We are not talking about spying on Grant Robertson and his mates at the Wellington Central Labour Party. We are not talking about spying on the people whom Grant Robertson has been stirring up into a fever over this bill. We are talking about people who constitute a very serious threat to the security of New Zealanders. And if you look at every major terrorist event going back to 9/11, New Zealanders have in some way been affected by them. So Grant Robertson and his cronies on that side of the Chamber need to start telling the truth about this bill, rather than playing politics.

The Greens, on the other hand—well, what would you expect? That was classic Russel Norman. He wants the GCSB to have just an external focus. Well, I have just explained why the GCSB’s powers need to be very much focused on the welfare of New Zealanders and keeping us safe. He talked about removing the purpose point about the economic welfare of New Zealand. Well, as you should know, as a member of the Intelligence and Security Committee, with the threats that New Zealand businesses and that Government departments are under on a daily basis through cyber-intrusions, there is an absolute need for this legislation.

What really is ironic, when you listen to the Labour Party, is that what we are doing here is tidying up the flawed legislation of 2003. I urge all Labour members to read Helen Clark’s interview yesterday with Audrey Young, because that spells out very clearly why this legislation is necessary. Helen Clark is not speaking against this, and I think she would actually be ashamed of the members over there.

The other point that they go on to make, quite misleadingly, is that they say that this bill has not gone through the proper process. Well, what other country in the world would you have someone like Kim Dotcom able to sit down at the statutory committee and harangue the Prime Minister? That is how open we have been about it. There have been 123 submissions on this bill. They have all been read and considered. There was a normal length of time for consultation on this bill at the statutory committee. The Prime Minister fronted the committee. It has been a very open and clear process. New Zealanders have had their chance to have their say, and there has been feedback, which has been incorporated into this bill in order to make it, in terms of the oversight, much better in the long term.

So I say to anyone listening out there: do not be fooled by the rhetoric of Labour and the Greens, because what it comes down to is that this was flawed original 2003 legislation, which had to be corrected. The GCSB is absolutely needed. Its powers have been narrowed. It needs warrants to work for the New Zealand Defence Force, for the SIS—

Every Government must ensure the safety and security of its people—that is basic. But a democratic Government must also ensure that the principles of democracy, the right to privacy and freedom of speech, are also protected. Achieving those two objectives is at the core of the Government Communications Security Bureau and Related Legislation Amendment Bill.

New Zealand First comes to the consideration of the legislation with a constructive view. We know that we are facing serious and challenging issues. Entrenched, dogmatic, party political positions will not help to frame suitable and necessary legislation in such a complex area, but New Zealand First’s position on matters of national security is clear and unequivocal. The Government must ensure the safety of its citizens. We live in a world of threats: those that are known and some that are still unknown. We cannot naively put our heads in the sand. To ignore the threats posed by extremists and other anti-democratic groups would be nothing less than irresponsible. We cannot be complacent that the terrorism will never be home-grown, and global terrorists do not respect international borders.

On the other hand New Zealand’s civil liberties must not be undermined by this legislation. People, we think, are rightly concerned about where the Government Communications Security Bureau (GCSB) legislation is leading us, particularly in the light of the leaks and the unauthorised disclosures that have been going on recently. New Zealand First is, therefore, seeking to put in place an effective watchdog that does not bite the very people it seeks to protect. So we have introduced Supplementary Order Paper 323 in the name of Winston Peters, which will create an independent panel to oversee the GCSB’s information-gathering activities. The advisory panel proposed by the Government to assist the Inspector-General, in Supplementary Order Paper 306, is not enough, we think. The panel we propose would be informed when an interception warrant or an access authorisation is issued under section 15A. The panel would be required to review the interception warrant or access authorisation within 15 working days.

The panel would be made up of former members of the judiciary, the New Zealand Police, and the New Zealand Defence Force because they must be independent of the police, the judiciary, and the armed forces. The members of the panel would bring to their role an understanding and appreciation of the context of national security. They would be people with an appropriate background, good judgment, and independence in the relevant areas of the operation of the security services. Our Supplementary Order Paper provides a measure of safeguard—a second string to the bow—to avoid unfounded voyages of exploration on New Zealanders’ privacy. Our proposal would ensure that the public could have confidence and trust in the GCSB, despite its having wide-ranging powers. Our proposal strikes a reasonable balance to resolve a complex issue. It is a fair and practical solution to reconciling security with democratic rights and civil liberties. It would ensure that the GCSB operates within the law, and the panel we propose would be well-equipped to see that it does.

We believe in having strong, clear law that empowers the GCSB appropriately but also provides for robust oversight and review procedures. In a perfect, threat-free world, agencies such as the GCSB would not be needed, but we do not live in such a world. We need agencies and structures to guard against threats to our security and national interests, but it is fundamental that the GCSB must operate in a fully professional manner to safeguard our rights and freedoms. As things stand, we cannot support this legislation. We will not be a rubber stamp. We have put forward a Supplementary Order Paper that provides a constructive way forward to assist the Government to develop an appropriate legislative framework for the GCSB, but we must oppose the bill at this point.

The one thing that most people agree on about this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, is that there needs to be an effective regime to govern our external intelligence agency. That is the starting point for this debate. The second thing I want to say is that this bill—[Interruption]

The CHAIRPERSON (Eric Roy): Order! I want to hear the member who is addressing the Committee. Let us have a bit of decorum.

The second thing I want to say is that this bill has nothing whatsoever to do with the recent, unfortunate experiences of the Henry inquiry. That set of circumstances could happen under any situation. That has nothing to do with the Government Communications Security Bureau (GCSB) legislation. The third thing I want to say by way of a preliminary comment is that this bill as it stands, as reported back from the Intelligence and Security Committee, is not satisfactory, and that is why I am putting forward a series of amendments that will need to be passed by this Committee and by this House if I am to support the bill further. The reason why I am putting forward those amendments is that they strengthen the accountability provisions of the bill, they actually make it much easier in terms of transparency, and they address all of the major points that were raised by the witnesses who attended the Intelligence and Security Committee.

Mr Grant Robertson spoke earlier and expressed a lot of concern about section 8C, in clause 6 of the bill, and I agree with him. I think that the ability contained—

💬 Hon Anne Tolley: I raise a point of order, Mr Chairperson. I thought there was a Standing Order in this House that said you could not move seats to gain an advantage to interject, and Mr Cunliffe has done exactly that. His seat is way at the back. [Interruption]

The CHAIRPERSON (Eric Roy): Order!

💬 Hon David Cunliffe: I’m happy to speak to the point of order.

The CHAIRPERSON (Eric Roy): No, I do not need any assistance. When the House is in Committee, members move around. I would sooner handle this matter by—[Interruption] Order! This is a point of order; I am on my feet. I think we will handle this by just saying we will have some decorum across the Chamber. While this member has been speaking there has been a barrage, and that is inappropriate. [Interruption] I am on my feet—just be very careful. So let us just have decorum. As I said at the beginning of the debate, it is a matter of contention, but we will make no progress if we cannot hear each other.

Thank you, Mr Chairman. The point that I was making was to agree with the concern expressed by Mr Robertson about section 8C in the bill as it stands. What section 8C says, effectively, is that by regulation or Order in Council any variety of existing Government agencies could be added to the provisions whereby the powers of the GCSB could be applied to them in the pursuit of their objectives. I think that is wrong; I agree with him entirely. That is why I have an amendment to delete section 8C in the bill, which means that if there needs to be additional entities added to the purview of this legislation, they will have to be added by way of separate legislation. So, Mr Robertson, you should be supporting the amendment in Supplementary Order Paper 308, which is before the Committee at the moment.

We will also be changing in that Supplementary Order Paper the warrant provisions to ensure that when a warrant is issued, it is put on a register so that people actually know what warrants have been issued, particularly when they relate to New Zealanders, and so that the GCSB will never be in the position again of having 88 cases of dubious legality. Every year the number of warrants issued will need to be recorded, as will the number of occasions when the GCSB has cooperated with other agencies—information that is not known at the present time.

The Intelligence and Security Committee, which currently has a very perfunctory oversight role, has its powers changed by my amendment to ensure that when it conducts the annual financial review of both the GCSB and the SIS, that hearing has to be held in public. At the moment it is held behind closed doors. Members opposite, who want accountability, are presumably now going to vote against an amendment that says that when it comes to the Intelligence and Security Committee’s operations in reviewing the performance of the security agencies, it has to do that in public. Those members are against that, and yet they want more transparency and more accountability. And they talk about a review. They want to have a review of our intelligence services. Under the amendment contained in my Supplementary Order Paper there will be a review early in 2015, and not only then but every 5 to 7 years thereafter of both the SIS and the GCSB. So the cry for a review again falls flat when these members have the opportunity to vote for one and they decide to vote against it.

Now let us talk about one of the other issues that has been raised throughout this whole debate and that is of critical importance. It is the definition of “private communication” and the issue of metadata, and Dr Norman made some good points in respect of that. The reality is that every witness who appeared before the Intelligence and Security Committee raised it as an issue. Every witness said that it was important to get a solution. No witness offered a solution. I made a point of ringing a number of them to say: “Have you got a definition? Have you got a way through this?”, and the answer I got universally was that, no, it needs to have a lot of work done on it—it needs to be worked through very carefully. That is why, as part of the agreement I have struck with the Prime Minister, there will be work done on the Law Commission’s 2010 report, which deals with this whole issue of the definition of “private communications”, not just in the GCSB legislation but also in the New Zealand Security Intelligence Service Act, the Crimes Act, and the criminal surveillance legislation.

So I simply wanted to make the point that I listened to the major points made by all of the witnesses who attended the statutory committee. I read their submissions and I noted that no one said: “We do not need a GCSB.”—no one, not even Mr Dotcom. Everyone said they wanted to have tighter accountability, more transparency, more openness, and a better process. I have crafted amendments that deliver those things. So it will be very interesting during the course of this debate to see those who cry for all of those things vote against them when they have the chance to do so.

I started on the point that everyone agrees that we need to change the current situation. The consequence of the actions of members opposite would be to preserve a most unsatisfactory status quo, where you have a GCSB that effectively has no accountability, where you have potentially 88 New Zealanders spied upon illegally over the last decade, with no record of that. That is appalling. The consequence of opposing this legislation is simply that that intolerable situation would continue, and no New Zealander deserves to be treated that way. This bill, with the amendments that I am proposing, will ensure that those days are well and truly days of the past, and that New Zealanders can have a fresh sense of confidence in the way their security services operate.

Peter Dunne, who just took his seat, said that we should take solace from his amendment to section 8C set out in clause 6 of the Government Communications Security Bureau and Related Legislation Amendment Bill. I want to read out what the Law Society said as to the collective effect of sections 7 to 8D, set out in clause 6, and then deal in particular with concerns about section 8B, which was its greatest concern, and which Mr Dunne’s amendments do not even address. The Law Society said that: “Proposed sections 7-8D set out new objectives and functions for the GCSB which, taken as a whole, effectively transform it from a foreign intelligence-gathering agency into an additional domestic spy agency.” That is its overall point.

💬 Grant Robertson: That is apparently not an extension of power.

Yes, that is right. According to National, that does not amount to an extension of power, but if you look back at the original Government Communications Security Bureau Act, it is very clear that it is about foreign intelligence, not about gathering information about New Zealanders. That is clear from the objective set out in section 7 of the current Act, which says: “The objective of the Bureau is to contribute to the national security of New Zealand by providing—”, and then it lists “(a) foreign intelligence …” and then “(b) foreign intelligence …”, and then paragraph (c) is in respect of Government departments protecting their computer systems. Nowhere is it about spying on New Zealanders. Then you turn to the current bill, and the Attorney-General can tell me if I have got this wrong, but my reading of the bill is the same as the Law Society’s. It says for a start in new section 8(2), in clause 6 of the bill, that the order in which the functions of the bureau are set out does not create any order of importance or priority. So the order in which they appear is irrelevant.

Then we go to section 8B(1)(b), which is the one that worried the Law Society the most. It says that the function of the bureau is “to gather and analyse intelligence about information infrastructures;”. There is no reference to this being foreign intelligence at all. It is general. It is to gather and analyse intelligence about information infrastructures. The reference to foreign persons in the earlier part of that section does not limit the interpretation of subsection (1)(b). To work out what that means, you have then got to go and look at the definition of information infrastructures. This is what the Law Society points us all to. When you go to the definition of information infrastructure, it is actually not just information infrastructure—

💬 Grant Robertson: Far from it.

—far from it; it is any communication carried on it. That is the nub of this bill. If Parliament passes this bill, it confers on the GCSB the ability to gather and analyse information, including communications, carried on technology platforms—absolutely. There is no restriction. This is not under the provisions where there has to be a warrant already given to the police—no. This is quite separate from the debate about whether it should be able to assist the police or the Security Intelligence Service.

The Law Society is saying that the effect of section 8B(1)(b) is that we are, for the first time in New Zealand’s history, allowing the GCSB to spy upon New Zealanders and have a look at all of their communications. That is what the legislation says according to the Law Society. Mr Dunne, your amendment is absolutely ineffective at curing that major increase in the jurisdiction of the GCSB. That is, unless I am wrong and the Law Society is wrong and the Privacy Commissioner is wrong and the Human Rights Commission is wrong—because they all say this, in respect of section 8B(1)(b). They say that that is a very wide information-gathering power, which can be used in respect of the GCSB.

Of course that power has to be in line with the objective of the bureau, but the objective of the bureau is widened as well. So there is no protection to be found in new section 7, which replaces a more narrowly drawn section in the original legislation. We have this very extensive power, so I want the Attorney-General to stand and tell me how it is that we are wrong and how it is that the GCSB is prevented from using the powers that are conferred in respect of section 8B(1)(b) upon New Zealanders.

I want to refer as well to those parts. I want to refer to clause 6, which inserts sections 8A and 8B. Mr Dunne said before that this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, could not apply to him and the Henry inquiry. Of course, it very, very much could if it wanted to be interpreted that way, because you could drive a bus through sections 8A and 8B. You could interpret it, and we know that it would be interpreted as widely, as loosely, as anything. So we could have Mr Dunne’s emails looked at because we could ask what they were all about. They were about a leaked report to do with the Government Communications Security Bureau (GCSB), and surely—surely—this would be interpreted to include that. Then we would ask in relation to Mr Dunne’s emails whether we needed just his metadata or whether we actually needed to look at the content. The GCSB, of course, would want to be looking at the content. I just want to raise some real questions about that.

If this was in and Mr Dunne was anywhere near, or it had been suggested that he might have leaked a document, of course this would be able to be used to check on him. Then the questions would be raised, and maybe they should be raised even now, as to whether the Prime Minister would tell us whether he or Mr Kibblewhite or Mr Eagleson emailed to the current GCSB those emails that they apparently could not open, the attachments to which could not be opened, so they could not look at them properly and, therefore, they dumped them, as they said. But we know that they did not mind getting them, or did not seem to mind. We do not know that, but we know that the GCSB has already operated illegally with 80-odd people. Did it do that once more in looking at Mr Dunne’s emails and the content of them? We do not know that, because the Prime Minister probably will not answer that question.

The Henry inquiry was about a leaked document. This part would definitely apply if it was in, to allow for a leaked document to be inquired about. This is about Part 1. It is about section 8A, and this would allow that for sure in section 8B.

I would also ask whether Mr Key, Mr Eagleson, or Mr Kibblewhite looked at my phone records or emails while you were ducking and diving for cover—

The CHAIRPERSON (Lindsay Tisch): Order!

Sorry, Mr Chairperson. The Prime Minister was ducking and diving for cover when we were discussing Ian Ferguson’s appointment. So Ian Ferguson—Ian Fletcher, sorry. The wrong one. There are a lot of people with “f”s in this business, it seems.

💬 Hon Member: Including the Prime Minister.

Well, I did not quite say that. But in terms of Mr Ian Fletcher and his appointment, I pointed out, and others in this House pointed out, that Mr Fletcher’s appointment was from a friend to a friend and there were some dubious goings on and how that happened. Did they want to know—

The CHAIRPERSON (Lindsay Tisch): Order! We are on Part 1. Focus on Part 1.

In Part 1, I note sections 8A, 8B—

💬 Kris Faafoi: And C.

—and 8C. Section 8A(c) states: “to report on anything done under paragraphs (a) and (b) and provide any intelligence gathered as a result and any analysis of the intelligence to—“(i) the Minister;”. It refers to the Minister—the Minister with the power, the Minister who can look at, or ask for, emails, it seems, of anyone. So how many emails have they looked at in terms of members of Parliament who have bothered them in other areas? That is enough on that aspect of sections 8A and 8B.

I stand in the Chamber to support the passage of the Government Communications Security Bureau and Related Legislation Amendment Bill. I have to start, I think, by reading out and giving some context to some previous debates. I would just like to quote from the Hon David Cunliffe, who rose to speak to the original legislation on 27 March 2003. He said: “I do think that the Intelligence and Security Committee deserves some commendation for this bill, because it has sought to balance the need to update and modernise our communications security infrastructure legislation with the need to protect third parties from accidental eavesdropping or interception. The bill does provide a legislative basis for non-warranted, non-authorised interceptions, under specific certain circumstances that are set out in the bill.”

💬 Tim Macindoe: So who said that?

That was said by the Hon David Cunliffe in the third reading of the Government Communications Security Bureau Bill in 2003. It was a very sensible contribution, which, unfortunately, has not been repeated in this Chamber tonight. It was also interesting to hear the previous-but-one leader of the Labour Party, the Rt Hon Helen Clark, who in the weekend backed the Government Communications Security Bureau (GCSB) bill, and said: “I think the real issue is, is there is a gap in the law, which the Kitteridge Inquiry apparently found that there was, and if so, how do you deal with that and do you take the opportunity at the same time to write in more controls to protect the privacy of the individual?”.

I submit that tonight we are looking at a bill that actually does exactly what the former leader of the Labour Party is suggesting. In fact, it addresses what New Zealand First is complaining about, and even to a certain extent what the Greens are complaining about. The previous legislation that was passed under a Labour Government in 2003 had significant problems with the drafting. That created an opportunity for the GCSB to act, particularly on behalf of other agencies, erroneously. It was clear in the legislation that there were contradictions. The GCSB over the last 10 years has used interception powers on 88 individuals on the understanding that it was acting lawfully under the law that that Labour Government passed.

What has now emerged is, of course, that there was a contradiction in the law, and even Helen Clark, the Prime Minister at the time the original legislation was passed, actually admitted that that needed to be fixed. So that is what this piece of legislation in front of us tonight is attempting to do. It is a pity that we have a continual play of politics around this very serious bill. The last time that this issue was in front of the House, Labour proposed the legislation, New Zealand First supported it, and the Greens clearly opposed it because they oppose the need for the GCSB, but the Opposition was thanked for supporting the bill and recognising the importance of the security of this country.

I just want to talk a little bit about some of the comments that have been made. One comment made during the politicking by Labour members opposite was that public confidence in the GCSB bill is at an all-time low. Well, I would dispute that, but I would also maintain that the misrepresentations by the politicking coming from that side of the Chamber have contributed to the public’s confusion about what we are trying to do here tonight. They have some responsibility for casting aside any responsibility for security for this nation in order to play politics because they are falling in the polls. I think that their leader will come to regret the stance that they have taken.

I have to applaud both United Future and the Greens; the Greens, in particular, because they despise this law. They despise all our spying laws, and they make no apologies for that. That is their philosophical position and you have to respect that. But what they have done is they have come to the Chamber and made some serious, sensible suggestions, not all of them we would agree with, but they have at least attempted to contribute to make the bill better in their eyes.

What we get from the Labour Party is that all it is interested in is having an inquiry. It is not interested in fixing the things that are wrong with the previous Act. It is not interested in closing those loopholes. It is not interested in addressing any of the issues—the legitimate issues—that have been raised about some of the legalities of some of the actions in the current Act. All it is interested in doing is playing politics, and all it has proposed is an inquiry.

I would like to focus on section 8, in clause 6. In the existing Act we have a very minor explanation of exactly what the GCSB’s responsibilities were. What this bill attempts to do is to set it out very clearly, and to make it absolutely clear that it has three distinct functions and what those functions are. I would like to just finally concentrate on section 8C, which is about the cooperation with other entities—which actually got us to the position that we are in now, where the GCSB believed that the legislation gave it the legality to act as agents on behalf of. You could drive a tractor through the previous Act. Anybody and everybody could come to the GCSB and ask it to act as their agents. What this bill does now is limit those agencies to three, specifically—

💬 Andrew Little: It does not.

It does. It is quite clear. Section 8C(1)(a) mentions the New Zealand Police, section 8C(1)(b) mentions the New Zealand Defence Force, and section 8C(1)(c) mentions the New Zealand Security Intelligence Service. And Supplementary Order Paper 308, which Mr Dunne is putting in, means that nobody else, no other department, no other agency can approach the GCSB and ask it to act as agents without this Parliament deciding that that is appropriate. I think that is a very sensible change, and the Government will be supporting that.

But I just want to make one thing clear to the New Zealanders who are listening to this debate, because they are really confused. Nothing in this bill gives the GCSB the ability to spy willy-nilly on New Zealanders. If the GCSB acts as an agent for other agencies it has to have the legitimate ability to do it. So if the police go to them and ask them—

💬 Andrew Little: No, they don’t.

They do. They do, Mr Little. They have to have a warrant before they can apply to the GCSB to act as their agents, and then they are protected by another addition to this bill—the Independent Police Conduct Authority. So we have strengthened the requirements, we have strengthened the accountability, and that is what makes this a very good bill for the interests of New Zealand security.

I want to first refer back to the speech of Peter Dunne, because I went back and checked what Peter Dunne said 3 weeks ago on Radio New Zealand. This is what he said: under no circumstances should the Government Communications Security Bureau (GCSB) be able to spy on New Zealanders—under no circumstances should the GCSB be able to spy on New Zealanders. Then Jane Patterson said: “Not even with a warrant?”. Peter Dunne said, no, not even with a warrant. On the integrity of this man rests the Government’s ability to pass this legislation, the Government Communications Security Bureau and Related Legislation Amendment Bill. Peter Dunne has not simply refined his position, he has totally contradicted the position he took before. When asked why, he said that there was a willing buyer and a willing seller. Well, he sold his soul. That was the sale price. What did the buyer give him for that? Some people would be tempted to say 30 pieces of silver. I think it was probably more likely a nice ambassadorial position somewhere. But I have got to say to Peter Dunne that his position makes a mockery of his outrage and indignation that emails, phone records, and swipe card records are being spied upon, because he is facilitating a piece of legislation that does not have adequate oversight to stop that very sort of abuse.

I want to come to Mr Coleman and Ms Tolley. They presume to speak on behalf of former Prime Minister Helen Clark. They do not know Helen Clark. On this side of the Chamber, we know Helen Clark, and we know those members, and I can tell Jonathan Coleman that Helen Clark’s values have nothing in common with anything he stands for, and that applies to Anne Tolley as well—absolutely nothing in common. So do not come into this Chamber and pretend to speak for Helen Clark, which, actually, in terms of diplomatic protocol, is quite out of order because she is an international official, and those members should not breach that protocol, anyway. Then Anne Tolley comes in and says that the Opposition is politicking with the bill and that normally you would get bipartisan support. I want to say to Ms Tolley that we tried, and I was part of it—

💬 Hon Anne Tolley: Mrs.

—Mrs, if you like. She misses the point every bloody time. I want to say to Anne Tolley that we worked really hard to try to find common ground that would balance the need to have security agencies with proper oversight over those agencies, to ensure that the rights and the freedoms of New Zealanders to not improperly have their privacy breached were protected. We tried really hard. New Zealand First tried.

As soon as John Key knew that he had his one vote majority, relying on John Banks, the man who could not remember Kim Dotcom, the man who lied about the donation, and the discredited Peter Dunne, whom Mr Key sacked for leaking that Cabinet paper—that is the sort of bipartisanship, Mrs Tolley, that you are after. Once you knew that you had two disgraced members of Parliament that this Government could rely on, no effort was made to get consensus. This party has always supported the need for security agencies, but under proper controls.

Then we had the Orwellian Mr Coleman talking about how this bill does not widen powers; it narrows them. That is straight out of Nineteen Eighty-Four. Well, Mr Coleman, it seems that the New Zealand Law Society does not agree with you. What does it say in its submission? Point 15 states: “It seems that the underlying objective of the legislation is to give the GCSB powers it lacked previously: the power to conduct surveillance on New Zealand citizens and residents. No explanation or justification for the conferral of this power is given.” That, Mr Finlayson, is what your union, the New Zealand Law Society, told the Intelligence and Security Committee.

I want to speak in favour of Supplementary Order Paper 305, which is in the name of David Shearer. It proposes that there should be a full and independent public inquiry. But in an endeavour to actually find common ground with the Government, it says that if you could show us that there is an urgent reason why you need this legislation, put a sunset clause in and have an inquiry that will report at the time the sunset clause runs out. That is a real effort to compromise, to find common ground, to get broad support, and to get the best possible piece of legislation.

Anybody who is rational would say that what you do before you decide to make ad hoc changes to the SIS legislation, the Telecommunications (Interception Capability and Security) Bill, and the Government Communications Security Bureau Act is you actually have a full and independent inquiry that would look at a number of things. It would look at why wider powers are being sought. If you are going to broaden the power to allow the GCSB to spy on New Zealanders, for heaven’s sake justify it. Mr Coleman talked about process. There is nothing wrong with process. I am on the committee with Clare Curran that is looking at the telecommunications bill. David Shearer was on the Intelligence and Security Committee. We both wanted the same thing. We wanted the GCSB, the SIS, the New Zealand Police, and the Defence Force to come before the committees and justify the extension of powers. Would the National Government allow that to happen with the critical agencies? No. John Key vetoed the critical agencies being able to even present evidence in private before those committees. This bill is meant to be about openness and transparency if we are to rebuild the confidence in our security agencies, yet those critical agencies were not allowed by the Prime Minister to present evidence or to answer questions. What has that man got to hide that he would not allow that to happen?

We want to know, in the broad inquiry, whether the agencies are competent and effective. I have worked with those agencies for 9 years. I have got to say that I think that a lot could be done to improve the competency and the efficiency of those agencies. With 9 years of working with them, I think I have got the right to make that sort of judgment.

The third thing that the inquiry would look at is what sorts of safeguards are required so that the agencies could do a proper job in looking after New Zealand’s security but not be at risk of breaching those powers. When you have got two insiders, including Marie Shroff, who was Secretary of the Cabinet for well over a decade, saying as Privacy Commissioner that this legislation should not proceed without a broader inquiry, then I say to the Government and I say to the Attorney-General that they should listen to Marie Shroff. She knows how the system works. When David McDowell, the former head of the Department of the Prime Minister and Cabinet, says that this bill does not have enough safeguards and that even if we had a Prime Minister who was interested in exercising scrutiny over the GCSB, you could not guarantee that that Prime Minister would be getting the information that he or she needs, you should be listening to those people. They are not wild-eyed radicals; they are people who know the system, know how the system has been abused, and they say that this bill is not good enough.

Mr Coleman nods his head. His New Zealand Defence Force had on record—he did not know about it; nor did I—that you are subversive if you bring the Government into disrepute. Stand up all the subversives on this side of the Chamber! That is our job. We hold the Government to account. And, worse than that, that Defence Force security manual said that investigative journalists were within the category of being subversive. Investigative journalists were defined as subversive. Mr Coleman, the Defence Force never told you that that was in its manual, yet you come to this Chamber and say that we should give the power under this clause and this section to the Defence Force to be able to get information from the GCSB—

💬 Hon Dr Jonathan Coleman: I raise a point of order, Mr Chairperson. [Interruption]

The CHAIRPERSON (Lindsay Tisch): Order! [Interruption] Order! When I am on my feet, there will be silence.

💬 Hon Dr Jonathan Coleman: Just for the record, it was the Labour Government that started—

The CHAIRPERSON (Lindsay Tisch): No, no—[Interruption] Order! No. Order! Be quiet. That is not helpful, because that is not a point of order; that is a debating point.

I would be well compensated by receiving a third call on this bill for that unwarranted interruption.

💬 Hon Member: Unwarranted?

Unwarranted, absolutely—no pun intended. The full and independent inquiry is patently necessary, when 40 percent of New Zealanders, Mrs Tolley, say that they have no trust or confidence in the GCSB—40 percent of New Zealanders. That does not allow that agency to operate right now with the confidence of New Zealanders, and even less so when it has a further extension—

It is very sad that the previous speaker, Phil Goff, has been here for 40 or so years and all he can do is give one speech—a vein-popping performance. He has not looked at the legislation, the Government Communications Security Bureau and Related Legislation Amendment Bill, but has simply stood up and raved. It is particularly contemptible when one considers that he was Minister of Foreign Affairs and Trade for some time, until he had to hand over to Winston, and then he was Minister of Defence. As he said, he has worked—

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. There are a number of ways in which Mr Peters can be described—the right honourable member—

The CHAIRPERSON (Lindsay Tisch): I thank the member. From now on we will address members by their correct titles, please.

Yes, the Rt Hon Winston Peters—such a distinguished member of this place. But what we are getting from the Green Party is a perfectly acceptable approach for the Green Party. For example, when looking at clause 6, which deals with, among other things, introducing a new section 7, the Greens’ approach was utterly predictable and utterly principled. They do not believe in the Government Communications Security Bureau (GCSB). They do not believe that there should be anything to deal with the economic well-being of New Zealand.

The Greens’ approach in 2001, through to 2003, was that there should be no GCSB. Their approach today is that, and they have raised their points of objection in a principled way. But not so the Labour Party. The Labour Party’s approach, quite frankly, is utterly contemptible. It is a wilful misreading of the legislation before the House. Labour members go on and on about safeguards, for example. They have not referred to one of the safeguards that are set out in this bill. Are they in favour of the privacy requirements that I went through in some detail? Are they in favour of some of the other safeguards? They have a wilful ignorance of them, and would rather just carry out a yelling and screaming function. I find it very disappointing when there is such a major piece of legislation before the House, where there used to be cross-party consensus on these matters, but they have shattered it.

But let us look at clause 6. I have dealt with the new section 7, and in my first call I went into some detail—

💬 Hon Clayton Cosgrove: A dissertation.

It was not a dissertation, I say to Mr Cosgrove. It was a very careful analysis of each of the key clauses to inform the debate, but, regrettably, they were not listening. Maybe they had been at the Saunders Unsworth function too long, because they stood up and yelled and screamed. But let us look at clause 6. I have dealt with new section 7, and then I spoke at some length about new sections 8, 8A, down to 8C.

Let us go through it again. New section 8 is designed to spell out very clearly the functions of the bureau. Section 8A, introduced by clause 6, deals with information assurance and cyber security. Section 8B—a very important one, which I will come to again in some detail in a few seconds—deals with intelligence gathering and analysis. Section 8C deals with cooperation with other entities, and I have to say that I believe that the Supplementary Order Paper proposed in relation to section 8C by Mr Dunne is a very good piece of work and we will certainly be supporting it. It tightens it up even more, so that it refers to only the New Zealand Police, the Defence Force, and the Security Intelligence Service.

Then we come over to the clause that the Labour Party keeps ignoring, and that is the one covering the rewrite of the existing section 14. If one looks at clause 12 one sees the rewrite. The current section 14 was intended to codify the basic requirement underpinning the operations of the GCSB, that it was not to conduct foreign intelligence activities against New Zealanders. That has been the section where we have come into a bit of rough water in recent times, and rough water when Labour was in power and the member for Mt Roskill was the Minister of Foreign Affairs and Trade and the Minister of Defence.

The way the basic premise was incorporated into the 2003 Act meant that it applied not only to the foreign intelligence function but also to its other two functions. So what are we doing here? We are rewriting section 14, incorporated by clause 12. It is a critically important clause. What it does is clarify the basic premise that there is to be no spying on New Zealanders, and specifically refers to the foreign intelligence function in section 8B. If you read the words of new section 14(1) one sees that the purpose is clarified, and the safeguards are also spelt out in some considerable detail in Part 1.

I am sorry, but the New Zealand Law Society is wrong—the Law Society is wrong. What is more, more than a few members of the profession have expressed their concerns to me about the way their submissions were given, by someone who then went to the Mt Albert War Memorial Hall and was making all sorts of extravagant comments—someone who used to act for Mr Zaoui—and at the same time was purporting to represent the Law Society. The thing about the Law Society, to quote a former United States judge, is that it is the bar that makes the statutes, and it is a very important function the Law Society fulfils, to come down to this place to give Governments of all persuasion a good swift kick from time to time, but to do so in an impartial and professional way. Regrettably, the standards were not applied in the case of the submissions on this legislation. There will be more about that later.

I found that speech, when it talked about politicking, and Ms Tolley talked about it as well, quite astounding. The Attorney-General went to a Catholic school, as did I. I am sure he remembers a biblical quote from Proverbs 26:11: “As a dog returneth to his vomit, so a fool returneth to his folly.” That is what we have seen tonight from that member. That is what we have seen tonight from that member, that Minister. A couple of colleagues have forgotten that one. Go to Sunday School. While we are in a sort of biblical frame of mind, I must say, after Peter Dunne sat down following his speech, I was reminded of that piece in the Bible where the cock crowed thrice. The cock crowed thrice, as Judas picked up his 30 pieces of silver.

The question I have for the Attorney-General, as he heaped praise on Mr Dunne’s amendments—if they tightened things up, if they provided some balance, if they improved this piece of legislation, then why is it that the Attorney-General and his colleagues and the Prime Minister, whose name this Government Communications Security Bureau and Related Legislation Amendment Bill is in, did not propose those amendments themselves? Why did they not? Would the Attorney-General like to answer that question, being a learned lawyer? Why they did not propose those amendments is quite simple. Because Judas picked up the pieces of silver—

The CHAIRPERSON (Lindsay Tisch): Order! I said earlier on, and made a ruling, that you will refer to members by their correct names.

I apologise to Judas.

The CHAIRPERSON (Lindsay Tisch): I have just made a ruling, and I ask the member to abide by it. We refer to honourable members in this House by their correct names.

The Hon Peter Dunne. What I was saying, as I apologise to a person who is mentioned in the Bible, who is no longer with us—the person was Judas Iscariot, who betrayed somebody quite formidable in history. You may want to have a look at that. The Hon Peter Dunne picked up the 30 pieces of silver. What that has translated into, of course, is some sort of guarantee in respect of his longevity—whether that be a political cup of tea to guarantee his seat, whether that be some ambassadorial post to Beirut or Somalia or somewhere quiet, or whether that be some sort of pay-off that the Government is going to give him. Because a couple of weeks beforehand, he was in the dog box. He may have been closer to looking through the striped sunshine, had the Prime Minister had his way. He was in the dog box. We know what he was accused of.

The CHAIRPERSON (Lindsay Tisch): Order!

I raise a point of order, Mr Chairperson. The last three Government speakers—the Attorney-General, Minister Tolley—

The CHAIRPERSON (Lindsay Tisch): Look, I am the ruler of that. I am asking the member—he must refer back to Part 1. That is what we are on.

I will refer to Part 1. If you would like me to, I will refer particularly to a clause that the Attorney-General did not address, section 8B(1)(b) in clause 6, which my colleague Mr Parker alluded to specifically in respect of the gathering and analysis of intelligence about information infrastructures. My colleague Mr Parker—of course, the Attorney-General did not address this—noted that any communication carried on those technology platforms would give the Government Communications Security Bureau (GCSB) open slather. To the Attorney-General and to Mrs Tolley and others—the rocket scientists over there—that is not a widening of the legislation or the capability of an intelligence service.

But I come back to this, as we address Part 1. The question I raise with the Attorney-General is why he did not propose these amendments. What pay-off is Peter Dunne actually going to get? The last couple of weeks he was in the dog box; now, of course, he has come out with these so-called wonderful amendments that, as my colleague Mr Goff has aptly put it, are diametrically the opposite of his position a couple of weeks ago. No way would he support this bill. No way would he support any enhancement of surveillance—

💬 Hon Phil Goff: Under no circumstances.

Under no circumstances, even with or without a warrant, there was no way he would do that. But oh no, when his own political carcass is on the line, when his own political hide is on the line, oh no—anything is possible. The man who put the one vote over the top for asset sales is back there again—one vote to get this through. Mrs Tolley talked about politicking. Well, is it politicking to not seek consensus? Is it politicking to not approach Opposition parties but to talk to the media about it and say “I want as wide a vote as possible.”, as the Prime Minister did, and behind the scenes to make no approach, no phone calls, no nothing, because they had Mr Dunne right in their back pocket? That is the truth. That is the truth about this legislation.

I would like to know from these geniuses why it was they did not put these amendments forward. According to Mr Finlayson, the human rights commissioner, the Privacy Commissioner, the Law Society—everybody is wrong. Everybody is wrong. Yes, he nods. Everybody is wrong, and if Mr Finlayson had his way, the deity would be four, and he would be the fourth. Everybody is wrong except him—except him. Yet the Prime Minister does not come down to justify this legislation. The Prime Minister is not taking a call. The Prime Minister did not think of these amendments. It is about the dirty deed. It is “willing buyer, willing seller”. It is 30 pieces of silver. It is the selling-out of any principle that Peter Dunne had. You have got to hand it to him—he is a survivor. He is a survivor. This boy will do anything to survive. He is a sort of political limbo dancer—how low can you go with Peter Dunne? He would sell his grandmother if he thought that would get him across the line and give him a couple of extra months. He has sold out New Zealanders with this in terms of Part 1. He has sold out New Zealanders because, as Mr Parker pointed out, section 8B(1)(b) does widen—does widen—the jurisdiction. If Mrs Tolley wants to argue that point, I invite her to get up and address specifically the legal points that Mr Parker made.

💬 Hon Trevor Mallard: Oh no, no, no.

No, no, no—I think it would be worth a crack. It would be worth a crack because then you would pit one brain against something else—one brain against another. I would wager Mr Parker would win that argument.

The other point I would make is that you see a pattern in select committees. When this bill went through the particular committee, the Intelligence and Security Committee, like a number of bills that go through committees in this House, the particular agencies—in this case, the Defence Force, the Police, the GCSB, and the SIS; the key agencies that one would expect you would get in to give you authoritative advice about the nature and breadth and depth of this bill—were blocked by the Prime Minister. That has happened in a lot of committees. We have had bizarre situations where bills have come before committees and the key Government agency that will administer the bill, will provide advice about the bill, is blocked, because they do not want to know. They do not want the agencies coming in, even in private or in secret, the highest classification a select committee can give. These people do not want these agencies to come in to be questioned by Opposition members. No, no—they just want everybody to say yes and agree with them.

One other point I would make is on an insulting point made by the Government. If the Government tries to make a proposition that we on this side do not believe in the security of our nation, the security of our people, and the need for intelligence services, that is an insult, that lacks credibility, and it says more about Mrs Tolley and her ilk than anyone else in this Parliament. Of course we believe in securing the citizenry of our country. We know and we understand that that requires a capable and quality, but accountable, Security Intelligence Service. We believe in that, but it must be accountable. It must be accountable to the people through the Crown, and it must act in an appropriate way. So for that mob over there to run that silly little spin line, which no one in New Zealand believes, no one in this Parliament believes apart from them, is an insult. It is an insult to all New Zealanders.

💬 Hon Anne Tolley: I’m pleased you take it that way.

So I say—what was that?

💬 Hon Anne Tolley: I said I’m pleased you take it that way. It is insulting, your behaviour.

Oh, it is insulting—my behaviour! I will say this: I hope New Zealanders listened to that member’s speech and that Minister’s speech as she made it up, as that member got up and did not address Mr Parker’s point, and as the Attorney-General got up and poured opprobrium over Mr Goff and others but did not address Mr Parker’s point, of course. Oh no, lawyer to lawyer, he did not do that, because even the Attorney-General knows he lacks credibility when you get right down to the nitty-gritty of this bill.

This bill does widen the powers of those intelligence services. The Government can say it does not as often as it likes, but when you actually look at the micro level and the clauses in this bill, it does widen those. It does not provide the accountability that, say for instance, Mr Shearer’s Supplementary Order Paper 305 would provide. What, I say to the Attorney-General, is wrong with a review of legislation to ensure that you get it right before you actually enact it? We could not convince the Attorney-General of that, so Mr Shearer put up a review with a sunset clause in the legislation. Mr Finlayson is a doyen of statutory interpretation—in his own mind at least, anyway—

💬 Hon Trevor Mallard: Jurisprudential fetish.

I will not go there. I say this: can Mr Finlayson take a call and advise us the best way to form legislation? Surely an investigation, a review, an analysis of the facts with professional advice, and then writing legislation is the way you do it, logically, or, if you cannot do that, my leader’s Supplementary Order Paper—

Kia ora, Mr Chairperson. Thank you for the call. I rise on behalf of New Zealand First to talk about Part 1 of the Government Communications Security Bureau and Related Legislation Amendment Bill. Section 7, in clause 6, reads: “The objective of the Bureau, in performing its functions, is to contribute to—(a) the national security of New Zealand;”. New Zealand First has never argued that there is not a need for an agency such as this—in, as my colleague pointed out, a world that is not threat-free—to protect New Zealanders. The conversation from New Zealand First has always been about the oversight so that the bureau itself does not suffer from what is called “invisible man theory”. The invisible man theory is that if you think you can get away with something because nobody will see you, then it is highly likely that you will try it—I beg your pardon, Mr Chairperson; it is highly likely that another human being may try it.

I am pleased that Mrs Tolley raised two or three points in her speech. The first one is around the playing of politics. Mr Banks also raised this conversation with regard to New Zealand First, particularly in his second reading speech where he said that Mr Key rang and rang and rang New Zealand First but the phone was always engaged. That is palpably false. New Zealand First members reached out to the National Government and said: “We understand that this is about our country’s security and we want to participate constructively in this conversation.”, but our calls were never returned. National members chose not to actually come across and try to work with the full Parliament for the benefit of this nation. So let us make that 100 percent clear and put on the record that the politicking is not from this side of the Chamber.

The other thing Ms Tolley talked about was that the New Zealand public was confused. Apart from that being incredibly arrogant and insulting to most of the New Zealand public, if the New Zealand public is ill-informed—which Mr Key has been on record saying—then it is ill-informed because of the manner in which this bill has been pushed through this Parliament. There has not been enough time given to the New Zealand public to truly understand this legislation.

Let us just say that the Attorney-General is 100 percent correct in everything he says. Let us just assume that—I know it is unlikely, but let us assume it. There should have been the opportunity and the time for the Attorney-General to explain himself clearly to the New Zealand public. Let me just read section 8(3), in clause 6: “The performance of the Bureau’s functions and the relative importance and priority of the functions, if any, are to be determined, from time to time, by the Director, subject to the control of the Minister.” There is a lack of trust currently in the country around the oversight of the Minister with responsibility for this agency, and there needs to be a truly deep conversation with the public of New Zealand to regain that trust.

The Electoral Commission was in my office recently, where we had a conversation about how we can encourage New Zealanders to continue to participate in democracy, to continue to come out and vote as numbers drop lower and lower. When things like this are pushed through this Parliament so that the people of New Zealand cannot be confident that the Minister with oversight, the Prime Minister, truly has a grasp or is truly working in their best interest, then we start to see a fall-off in democracy.

That is why New Zealand First has placed Supplementary Order Paper 323 on the record, in an attempt to gain some of that trust back for the New Zealand people. That Supplementary Order Paper would establish an independent body to which warrants, when issued, must be shown after a certain period of time, and by which warrants must be reviewed to check that the reason they were given is truly what is being enacted. And I would also add that we must not forget that this conversation began because a New Zealand resident was spied upon.

I move, That the question be now put.

I rise to address Part 1 of the Government Communications Security Bureau and Related Legislation Amendment Bill. In doing so I am going to speak from first principles, and speak to the grave and fundamental constitutional and privacy concerns that are surrounding this bill. Let us restate at the outset that Labour will immediately set up a cross-party inquiry to thoroughly and independently review the effects of this bill, if it yet passes, on our security agencies and on the rule of law. Following that review we will repeal the bill in its current form and replace it with new provisions that get the balance right between privacy, constitutionality, and the rule of law.

Before taking calls to detail exactly what is wrong with the drafting of the bill and how it must change, let me first state several issues that the bill is not about. Firstly, it is not about Fonterra, although it is intriguing that Friday’s 4.30 p.m. dump of sensitive, stolen emails that implicate the Chief Executive of the Department of the Prime Minister and Cabinet and the Prime Minister’s chief of staff occurred shortly after the Government was notified, at around 12.30 that day, of Fonterra’s imminent disclosure. It takes something akin to botulism to make this bill appear mildly palatable to some.

Secondly, this bill is not specifically about the details of the Peter Dunne - Andrea Vance email trail. However, the broad context is relevant. Let the Committee and the public of New Zealand recall that those stolen emails related to an inquiry into a leaked document. The document was the Kitteridge report—the damning litany of the legal and oversight failures of the very same Government Communications Security Bureau (GCSB). The Kitteridge report was prompted by the fiasco that was the illegal spying on Kim Dotcom, and it transpires that Mr Dotcom was one of at least 88 New Zealand citizens upon whom illegal spying operations have been conducted. For all we know, on that list of 88 might well be current or former members of this House. Let us be absolutely clear: the appropriate response to spies running amok and illegally spying on New Zealand citizens is not simply to legalise that. As others have said, the response to illegal speeding is not to raise the speed limit, and the proper response to theft is not to legalise stealing. The proper response to illegal spying is not simply to legalise the practices that were hitherto illegal.

Thirdly—and this is important—this debate is not about removing from New Zealand the capability to defend ourselves against foreign cyber-attack. New Zealand needs to have those capabilities and must be equipped to perform them well, but—and it is a huge but—those capabilities should not be deployed against our own citizens except in the most unusual and exceptional and verifiable circumstances, and then only with a judge’s warrant based upon an independent, and thoroughly and substantially evidenced, threshold of proof. The warrant process must protect our citizens from arbitrary mass surveillance, whether performed directly by New Zealand’s GCSB or indirectly by the access of information sourced from other partner-country’s agencies.

This bill should be about crafting rules that achieve a proper, constitutional framework for activities that may be necessary in exceptional circumstances but must never become routine. The definitions of “information infrastructure” in Part 1 of this bill, which include all emissions, all communications transmitted across all networks—

I am delighted to have this opportunity to take a call, amongst many others. We have a lot to say. There is a lot to say about this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill. I think the New Zealand First speaker Tracey Martin’s identifying the issue of trust is a very important part of the context. Part 1 is about whether we—and I mean the citizens of this country—trust the Government, in the context of the debacles that are going on around here, to actually write a law with sufficient justice and lack of bias that will actually protect the rights of citizens. When 40 percent of people say no, even though, supposedly, they are too confused to understand it, I think there is a message in there.

The other message around Part 1 is that people like Dame Anne Salmond, New Zealander of the Year, have come out and said clearly that this—and if we look at Part 1, we can see why—is electronic McCarthyism. The younger generation does not really know what that means, but we older people can remember it, and the stories get passed on. Some of us are students of history and do not want to see it repeated just because we are in an age of cyber scrutiny and mass surveillance.

So let us reflect on the fact that Dame Anne Salmond and 40 percent of New Zealanders do not support this, and that the Law Society, along with other people, came before the Intelligence and Security Committee and clearly identified, clause by clause, issues in Part 1 that were problematic. Not all of them can be stupid—not all of these people who operate as watchdogs on us. We do not get it right all the time in this House, even though many people, other than me, are fantastic lawyers. We are deeply political. This is deeply political, and that is why we need the oversight of people like the New Zealander of the Year and people like the Law Society’s members. It is very disappointing to have those people treated as if they are idiots who are being confused and misled by what is a disingenuous piece of legislation.

Clearly everyone agrees it was time for a change, and Part 1 was supposed to be that change, but this is not it. I reject the Hon Peter Dunne’s suggestion that so long as things are looked over and signed off by the SIS, the Defence Force, and the Police everything will be OK. My personal experience was that I was spied on by the SIS when I was 15 years old for being an education activist—scary, terrifying, a terrorist.

💬 Hon Trevor Mallard: Well, you were terrifying. You terrified me!

It is true. I was at school with the Hon Trevor Mallard, and I think I was terrifying at the time. However, I have mellowed, and he has changed. What I would like to say about the SIS is that, basically, if Part 1 relies on the Thomson and Thompson Tintin people in the SIS, you are going to find a level of incompetence that is not to be relied upon for sign-off. The police, as we know, have not properly apologised, as has the Government not properly apologised, to Tūhoe for what happened at Ruātoki. This is the context of Part 1. It is a context of lack of trust. I think it is important to talk about that context in relation to the Supplementary Order Papers that Dr Norman has put up to try to improve this dog’s breakfast, although in our hearts we know that this bill needs to finish, it should be over. We need a complete review of the entire situation, not a bad bill that will get looked at every 5 years, which is what is suggested in Part 1.

The Government is saying that there are sufficient safeguards in the key clauses. If you look at new sections 7 and 8 in clause 6 of the bill, these have raised major concerns around the formation of the bureau, the idea of cooperation with other agencies, and the links with foreign agencies such as the “Five Eyes”. Why would we worry about that? Part 1 is supposedly addressing terrorism. I ask this Committee, what is terrorism? I am terrified of drones that can be sent from the United States of America to kill off children in the Yemen, Afghanistan, and Pakistan. That is terror. There are many forms of terror in this world. If we are serious about stopping the fundamentalists on all sides of the political spectrum, we are not going to increase mass surveillance of our citizenry—we are not going to do that. We are not going to turn people who simply want to exercise dissent into terrorists. I would argue that the history of spying in the world—and this Part 1 reinforces that by the breadth of the clauses—is always about spying on people who dissent from the Government of the day. That is why we cannot right this by ourselves. We need the Law Society, we need Dame Anne Salmond, and we need my hairdresser, who told me today she was very unhappy with this bill. We need everybody to have a proper say.

I move, That the question be now put.

I want to pick up on comments made by the Attorney-General in his speech. He said there had been wilful misreading of this legislation, the Government Communications Security Bureau and Related Legislation Amendment Bill. He then went on and made a gratuitous attack on the Law Society. I thought it might be important to point out that at 3.48 p.m. today the Law Society issued a press statement regarding changes to this bill. We have heard tonight that the Law Society, along with many other very good organisations, respected organisations, including the Privacy Commissioner, Marie Shroff, and others, made submissions to the Intelligence and Security Committee. Today the Law Society put out a press release that said: “GCSB Bill remains flawed despite proposed changes”. Whose name was that press release in? It was in the name of Austin Forbes QC, Law Society rule of law committee chair. The Attorney-General slagged off the Law Society because some non-entity, some person who had an axe to grind, went to a public meeting—he had represented Zaoui—and made a comment. He was another Queen’s Counsel, I gather.

However, the point that I am making is that one Austin Forbes QC, a former president of the Law Society, was a person whom National members believed in very strongly in 2008, when they were in Opposition and the electoral finance legislation was being debated in Parliament. Whatever Mr Austin Forbes said at that time was absolute gospel—it was gospel and they believed it. When he said “This bill has a chilling effect”, they jumped on it and repeated it week after week after week. Well, I think the Law Society, in the name of Mr Austin Forbes, has said much more about this bill, and maybe the Attorney-General would like to apologise to this very well-known Queen’s Counsel—something the Attorney-General sought for a long time and found great difficulty in getting himself until he got into Parliament.

But what did the Law Society say today at 3.48 p.m.? It said that “minor improvements” had been made but they “do not address the fundamental flaws in the bill”—

💬 Hon Trevor Mallard: Especially in Part 1.

—especially in Part 1. It then went on to say: “the legislation should not proceed”. It said: “the idea of a set of guiding principles is potentially a step in the right direction, but [it was] not convinced that the proposed wording … provides adequate … safeguards,”.

It was also very critical of the dropping of Supplementary Order Papers on any part of this bill at this time—dropped on this bill this day. None of us had seen them. We had Peter Dunne for days saying: “I’m going to bring in Supplementary Order Papers that are going to make a change, because I sold my soul to the National Party, and they’re going to accept my Supplementary Order Papers.” We did not know what they were, the public did not know what they were, and the Law Society did not know what they were, but, of course, Peter Dunne did, because he had done a dirty little deal. So we have the Law Society and Mr Austin Forbes QC saying that this bill is flawed. Well, I would like to quote the Minister for Economic Development—the Government cannot have it both ways. It cannot say, when the Law Society makes a submission on one bill that suits the Government—when Mr Austin Forbes does—that it is a very good submission, and then when it gets one it does not like, say that it is no good. It cannot have it both ways.

Another question I have in terms of this bill is a comment that Peter Dunne made when he said he would not support this bill until he knew what the cost would be if the SIS had the same equipment, capacity, and capability as the Government Communications Security Bureau (GCSB). Do members remember that? It was only a couple of weeks ago. He would not support the bill until he got the costings, and until he could look at the costings. Well, Attorney-General, what are the costings? What advice was given to Peter Dunne? What was he told would be in the costings in relation to the GCSB having the same capacity as the SIS? So I say to the Attorney-General—

I am going to ask the Minister in the chair at the current time, the Attorney-General—and I will just note that it is apparent that urgent public business has kept the Prime Minister from doing his duties with this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, in the Chamber—to indulge his fetish with regard to jurisprudential matters. I am going to give him a technicality on which he can get off. I want to refer him to clause 5(3), which inserts, in section 4 of the principal Act, a paragraph that refers to incidentally obtained intelligence. It states that incidentally obtained intelligence means intelligence “(a) that is obtained in the course of gathering intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons; but (b) that is not intelligence of the kind referred to in paragraph (a)”. So how can we have intelligence that is obtained under a certain method—about capabilities, intentions, or activities of foreign organisations or foreign persons—but is not that? I am sure the Attorney-General will have a simple legal explanation for it, but it seems to me that if something is not something, then it cannot be something. That is what this clause says.

💬 Kris Faafoi: Known unknowns.

What?

💬 Kris Faafoi: Known unknowns.

Well, known unknowns, says the member. It is the unknown knowns, I think, in this particular case. I accept that although I have been around this place for some time, I am not a lawyer, and there might be a good explanation for intelligence, which is not around all the time in this bill. But I think in the Government Communications Security Bureau connotation, it is intelligence “(a) that is obtained in the course of gathering intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons; but … is not intelligence of the kind referred to in paragraph (a)”. How can something be (a) but not (a)? You know, I did not do law, but I did philosophy and I did logic and a bit of maths back in the day, and (a) but not (a) is not a possibility. It is something that is absolutely illogical, and it seems to me that the—

💬 Clare Curran: Metaphysics.

Well, I do not want to get metaphysical with the member. I think what we need to look at really carefully is whether in the rush to get this legislation through, there is a paragraph here that has not properly been considered.

I know that it is an old saying, but I am here from the Opposition, and as much as I like not helping, I think it is important that, even in this appalling form, we have a bill that is at least logically consistent and coherent. I see from the way that officials are now looking carefully at it—the pencils are out, and the officials are writing—that we have the possibility of getting an amendment to that particular clause. And I want to remind members of the Committee that if we pass this clause, if we go past Part 1 tonight, then in order to recommit Part 1, we will have to have a debate on the floor of the Chamber in order to suspend the Standing Orders to go back to the bit that we passed. So what I am asking for—

I want to pick up on referring to the 10 substantive amendments that I have put forward on Part 1 of the Government Communications Security Bureau and Related Legislation Amendment Bill. Where I was at before was looking at amendments around sections 8A and 8B in clause 6. They are essentially to restrict the information flow to New Zealand so that the information gathered by the Government Communications Security Bureau (GCSB) under sections 8A and 8B does not travel offshore. Apparently—we were told—the practice in the past has been to send all this information offshore.

I want to talk a little bit about section 8C and my amendment under Supplementary Order Paper 319 to section 8C. The amendment is to essentially remove section 8C, and the reason for that is that I think we have already seen the threat that section 8C poses to our democracy. Section 8C basically says that the Defence Force, the Police, and the SIS can use the GCSB to spy on New Zealanders. That is what it says. We know that the Defence Force thinks that investigative journalists are subversives. Under the New Zealand Security Intelligence Service Act, for example, subversives are part of the definition of protecting security, so it is protecting New Zealand against subversives.

So journalists become a legitimate target once they are defined as subversives, as the New Zealand Defence Force believes journalists to be. Once journalists become subversives, and hence a legitimate target of surveillance, the Defence Force can go to the GCSB and say: “Help us out to spy on journalists, because journalists are subversives, as we all know, and hence it is legitimate for us to ask you to spy on them.” This, I think, demonstrates the problem with section 8C and it is why we are trying to delete it under Supplementary Order Paper 319.

I would also like to make a comment on Mr Dunne’s amendments, which we will be supporting because they do provide minor improvements to the bill, and we will vote for minor improvements. I would refer in particular to the review process that Mr Dunne has put in place. That review process is completely meaningless. It is like the MMP review. Remember the MMP review? The Government said we were going to have a review of MMP if, in the referendum, people voted for MMP. The Electoral Commission, the independent umpire, suggested a bunch of changes to MMP and the Government did not like them for partisan, political reasons, so implemented none of them. So I am afraid that the review that Mr Dunne has got is meaningless. We will support it, but, frankly, it does not fix up the bill.

The next Supplementary Order Paper I want to talk about is Supplementary Order Paper 309. The effect of my amendment here is essentially to revert to the original section 14 of the Government Communications Security Bureau Act 2003—that is, to revert to the situation that Parliament believed it had passed in 2003, which prevented the GCSB from spying on New Zealanders. If you do not believe that that is what Parliament voted for, you should read the debate in 2003. I have been on the Intelligence and Security Committee dealing with this bill and reading the debate from 2003. It is remarkable, for example, that Tony Ryall, who is also now a member of the Intelligence and Security Committee, spoke at length about how clause 14 of the 2003 bill absolutely forbade and prohibited the GCSB from spying on New Zealanders. He said that anybody else who argued anything else was a conspiracy theorist. He said that they were slightly strange people if they thought that the GCSB was going to be able spy on New Zealanders. That is what Tony Ryall said in the debate about the 2003 legislation when it was passed.

So the existing section 14 of the Government Communications Security Bureau Act 2003 says that the GCSB cannot spy on New Zealanders. The GCSB said: “We don’t care what the law says, we are going to spy on New Zealanders because we want to.”, and it went ahead and did it and broke the law. We have never seen the legal opinion from the Inspector-General of Intelligence and Security saying that it is arguable whether it broke the law. The Government will not release that legal opinion because it knows that it is bunkum. The GCSB clearly did breach the basic rights of 88 New Zealanders by spying on them against the law and clearly breaching section 14. So my Supplementary Order Paper 309 is essentially to revert back to the original meaning that Parliament supported in 2003 when it voted for the legislation, which was that the GCSB was simply not allowed to spy on New Zealanders. We think that that is fundamental to why the GCSB was established.

I would also just like to touch on a couple of other Supplementary Order Papers. Supplementary Order Paper 322 basically stops the unwarranted actions of the GCSB. Section 16 of the Act allows the GCSB to engage in unwarranted interception. So it can—

I move, That the question be now put.

Thank you for giving me the opportunity to speak on this very important bill, the Government Communications Security Bureau and Related Legislation Amendment Bill. What is very clear is that Government members have spent the night trying to convince the Committee and all New Zealanders that this bill makes no significant difference to the existing Government Communications Security Bureau Act, and, of course, nothing could be further from the truth.

My learned colleague the Hon David Parker has adumbrated the changes to new section 8, set out in clause 6, which demonstrate that under this bill the powers for the Government Communications Security Bureau (GCSB) have been significantly expanded, including through the definition of the target for surveillance, which is now described as “information infrastructure”. It is not just computer systems; it is now a very broad definition. Of course, what new section 8 also does, in describing the functions of the bureau, is no longer limit it to foreign intelligence.

Even with that, the next best thing we might do is look at the safeguards that are provided for in the bill. The point I want to make, and I will myself adumbrate these a little as I tread wearily on in my speech, is to show that the safeguards are virtually non-existent. I turn first to section 8C, inserted by clause 6, which sets out the other departments and agencies that the GCSB will be allowed to assist, which is all very well. Peter Dunne has very nobly said that his Supplementary Order Paper 308, if it is passed, will mean that the Government cannot simply add departments but will have to amend the legislation if it wants to add any more departments. That is good, as far as it goes, but, actually, it is not good enough because of subsection (2) of new section 8C, which says: “To avoid doubt, the Bureau may perform its function …”—and I cut to the chase, through to paragraph (c) of that subsection—“even though the advice and assistance might involve the exercise of powers by, or the sharing of the capabilities of, the Bureau that the Bureau is not, or could not be, authorised to exercise or share in the performance of its other functions.”

So here we have a safeguard that is not a safeguard. It gives the appearance of constricting, restraining, and limiting the GCSB’s powers, but then gives it an out. The GCSB can do whatever it likes because it will be able to rely on section 8C(2)(c). That is no safeguard at all, and that confirms the anxiety that many New Zealanders have that this legislation, in addition to expanding to an extraordinary degree the powers that the GCSB currently has, now provides no real safeguard. Even if my other learned colleague the Hon Trevor Mallard is correct in his concerns about section 4, which is amended by clause 5, and the new definition of “incidentally obtained intelligence”, and that paragraph (a) does not mean paragraph (a), it does not matter, because section 8C(2)(c) will protect the GCSB from exercising its powers in any context and in any way at all.

Let us move to section 8CA, “Principles underpinning performance of Bureau’s functions”, inserted by clause 6. There is a very noble and honourable setting out of the principles in subsection (1) of that new section. It will be “in accordance with New Zealand law” and “all human rights standards” will be observed and exercised. It will “discharge … its operational functions, independently and impartially:”—fantastic, grand, to be commended. But it is all ruined by subsection (2). Subsection (2) comes in and completely destroys any benefit there might be. In fact, it is not just subsection (2) but subsection (3) as well. Subsection (2) says: “Subsection (1) does not impose particular duties on … the Director …”. So even though there are these principles, the director will have no duty to abide by them at all. Then subsection (3) gives the appearance of some sort of protection. It says: “The Director must take all reasonable steps to ensure that—(a) the activities of the Bureau are limited to those that are relevant …”, and so on. Basically, they are a set of factors that look like a codification of the principles of intra vires.

Here is the thing. The first argument might be to say, well, why have “all reasonable steps”? There is other language that the Government could use in a bill like this. What about “all practicable steps”, which is much firmer, much tighter? But the real question is why have this provision at all if you do not want to—

I move, That the question be now put.

I want to speak to clause 6 in Part 1 of this wretched bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, and speak particularly to section 8C and the amendment put forward by Peter Dunne in Supplementary Order Paper 308, for which we are meant to be eternally grateful.

Section 8C as it stands, under clause 6, has, in the Government’s latest version of the bill, still retained subsection (1)(d), which was one of the most offensive of the many offensive provisions in this legislation. It says, for those who do not have it in front of them—

I am sorry to interrupt the honourable member. The time has come for me to report progress.

House resumed.

The Chairperson reported progress on the Government Communications Security Bureau and Related Legislation Amendment Bill, and no progress on the Resource Management Reform Bill.

I move, That the report be adopted.