Government Communications Security Bureau and Related Legislation Amendment Bill

Kia orana. Before I was so rudely interrupted in my speech on this Government Communications Security Bureau and Related Legislation Amendment Bill by the House inconsiderately rising at 10 p.m. on Tuesday, I was wanting to speak to clause 6 in Part 1 of this bill and speak particularly to the new section 8C and the amendment put forward by the Hon Peter Dunne in Supplementary Order Paper 308. At that time I said it is clear we are meant to be eternally grateful for this amendment, but I want to introduce some material to the Committee this afternoon that goes to the point that that is the very least that should be changed about the bill, so to be grateful to Peter Dunne for his Supplementary Order Paper is somewhat stretching credibility.

New section 8C was the bit that contained the part that said that the function of the Government Communications Security Bureau (GCSB) was “to co-operate with, and provide advice and assistance to” basically any department—any Government department. It included and specified the New Zealand Police, the Defence Force, the Security Intelligence Service, and any department made within the meaning of the Public Finance Act.

I want to labour this for a moment because the point about that is that it has to be one of the most offensive clauses in this piece of legislation. Yes, Peter Dunne’s amendment deletes the last part of that section. But the reason it is offensive is that it allows, by an Order in Council, made on the recommendation of the Minister responsible for the GCSB—so not by any legislative prescription, not by listing here in the legislation which departments might be affected. Was it going to be the Ministry of Health? Was it going to be the Ministry of Social Development? Was it going to include Work and Income? Instead of listing those things, it simply said that the Minister, by an Order in Council, would be able to name any department at all that the GCSB could come in and assist—any department at all.

The Regulations Review Committee applied itself to this particular part. Later, after my speech, I intend to table the advice of the Regulations Review Committee, which has just been made public this morning but will not have gone up on the parliamentary website yet, I do not think.

The point about this is that it is an extreme version of a “Henry VIII” power. It does not matter what the history of that is, although people can probably work it out. Henry VIII did not just have trouble with his wives or with the Pope; he also had trouble with Parliament. The point is that it gives the Minister the right to nominate a department without any check or balance from Parliament at all and gives the GCSB the right to go in and give its assistance to anybody. This, on the advice of the Regulations Review Committee, should have been deleted anyway. At the very least, the statutory committee considering this bill should have gone back, because there was no requirement for the Minister to consult appropriately prior to making an Order in Council. There were no objective tests set down to specify the criteria of which the Minister must be satisfied prior to recommending the making of an Order in Council. There was no reference to other pieces of legislation, such as section 50 of the Search and Surveillance Act 2012, which provided some objective tests against which their abilities and their functions may be discharged.

The point about this is that it was the worst of all of the bad parts of this bill. This was something that put no prohibition on the Minister or the Government telling the GCSB to exercise its functions on any department at any time for any purpose. They did not have to meet criteria. There was nothing that had to be consulted on. Peter Dunne wants us to believe that he has done us a favour with his Supplementary Order Paper 308, with his amendment that deletes that. I would say to that member that I would be grateful if it were not for the next bit in the legislation.

The next bit in clause 6 is new section 8C(2), which says this: “To avoid doubt, the Bureau may perform its function under subsection (1) …”—if Peter Dunne’s amendment is passed, and we will support it because this was a reprehensible piece of the legislation to start with—“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.” In other words, it is going to have the ability to do what it wants anyway, so all of Mr Dunne’s amendment goes up in a puff of smoke. He has not seen it through to new section 8C(2)(c) and realised that the GCSB can give its advice and assistance even though that might involve the exercising of powers that it is not authorised to have.

The members opposite have made a huge song and dance about what oversight there is going to be of the GCSB. This gives the lie to that assertion. There is no oversight. There is no check and balance on the GCSB. I would say to the Hon Peter Dunne, who probably would have wanted his political epitaph to be “Minister of Common Sense”, that it is now likely that his political epitaph, when it comes—either voluntarily or by force—will be “Willing Buyer, Willing Seller”. As soon as that man uttered those words, he gave up the right to strut around this Parliament as some kind of conscience and gatekeeper for this Parliament. The self-righteous prancing of this man knows no bounds. Yet, when it comes down to the words on the page, he trips at the last hurdle. He trips at the last hurdle because he is not prepared to see it through.

What he did was the bleeding obvious. All his amendment does is provide what should have happened anyway, and what would have happened if the advice of the Regulations Review Committee had been taken into account. So he does it by amendment, but does not look ahead. He thinks about how he can persuade people that he is still this man of common sense and utmost integrity, which has allowed him for years to stride the middle way in this Parliament. There is another word for people who stride a middle way—“fence-sitter” is one of them. He has made a virtue of his ability to work with anybody who wants to work with him. On this occasion his epitaph will be “Willing Buyer, Willing Seller”, and that is the end of that man’s reputation.

There have been a number of biblical allusions referred to in the course of this debate. There has been some reference to Judas Iscariot and 30 pieces of silver. I would like to make another biblical allusion, and that is that I wonder whether the deal that Peter Dunne has got is Katrina Shanks’ head on a platter.

I move, That the question be now put.

I am happy to have the first of what I hope will be many calls on the Government Communications Security Bureau and Related Legislation Amendment Bill. I want to go immediately to one of the detailed clauses in this legislation. For members who are following along, new section 8CA(3)(c) in clause 6 is the clause that I intend to talk about. That clause states that “The Director must take all reasonable steps to ensure that—(c) the Bureau does not take any action for the purpose of furthering or harming the interests of any political party in New Zealand.”

I think that actually is a very important clause. It is a clause that I support. But I want to consider how much faith New Zealanders can have in that clause actually being followed, given that the director that that clause refers to is a childhood friend of John Key, was appointed without proper process—hand-picked by John Key to do the job, without the proper process that would normally go around that—and reports directly to that same person, John Key. How can New Zealanders have confidence that he will discharge his responsibilities in a politically impartial and neutral manner?

Let us make no bones about it. These Government members are very, very happy to exercise the power of the State when it comes to protecting their own personal privacy and their own information, but they are not so concerned when it comes to the privacy and the personal information of every other New Zealander.

So let us consider how this bill came about in the first place. In the matter of the Kim Dotcom fiasco, one of John Banks’ biggest campaign contributors was being illegally spied on by the Government Communications Security Bureau, and when that became apparent we all know what happened—absolute chaos reigned. This legislation is now being brought into the House because the Government acted illegally, with regard to something that has become a very, very political matter.

Then let us consider that the very same Mr Banks sat down for a cup of tea with John Key—which we all now know about; the whole country knows about—and John Key did not hesitate to use every avenue available to him to ensure that the contents of that conversation did not get out. When it became apparent that that conversation had been recorded, he did not hesitate to send the police in to raid the offices of the media—to raid the offices of the media. So we know that any pious statements we hear from the Government now about protecting the fourth estate are pretty hollow, because when the media held information that might have been damaging to John Key, he did not hesitate to have their offices raided in an attempt to try to get that information back. And, if the allegations that we heard yesterday are correct, he also had the police accessing the phone records, or attempting to access the phone records, of someone else, a private citizen—

💬 Grant Robertson: A modest citizen.

—a very modest, private citizen—who may have had information relevant to that particular investigation.

I think that means that New Zealanders cannot have any confidence that this clause that I am debating now, which requires the bureau to act in a way that is effectively politically neutral and not to act to the benefit or the detriment of any political party in New Zealand, will necessarily be adhered to. If we move to that same section 8CA and look at subsection (1)—the very first clause in that particular section—it states: “In performing its functions under this Act, the Bureau acts—(a) in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment:”.

I thought that that was very interesting, because we have got some very good laws around human rights in New Zealand—the Human Rights Act, the Privacy Act, and so on—and I wanted to get a good analysis of how this proposed law change might impact on those. We rely as members of Parliament on a thing called the regulatory impact statement to give us that information. The regulatory impact statement will almost always contain an analysis of the implications on the Human Rights Act, for example, of a proposed law change. So I read the regulatory impact analysis that was placed on the Table earlier today, and it does not do that. It does not go through and give us details about how this legislation will impact on the New Zealand Human Rights Act.

So I think that is really important, because if we come back to this clause, it says that “In performing its functions under this Act, the Bureau [must act] … in accordance with New Zealand law and all human rights standards recognised by New Zealand law,”. I think it is very reasonable to ask to what extent are those very laws and standards infringed upon—

I move, That the question be now put.

At the end of my speech before, I wished to table the advice of the Regulations Review Committee to the chairperson of the Intelligence and Security Committee, spelling out the inadequacy of the legislation in its first draft.

Can I just ask the member, has it been publicly released?

It was released by the Regulations Review Committee, which I chair, only this morning, and it may not yet, by this stage, have gone up on the parliamentary website—I do not know that. So, no, it has not been in the public domain previously. It is relevant to this debate, and I would like to table it so that members can have a look at it for themselves.

Well, if the member has released it, then she is perfectly entitled to seek leave. The member has sought leave. Any objection? Maybe the member—

💬 Chris Hipkins: Leave to table.

The CHAIRPERSON (H V Ross Robertson): Leave has been sought—

💬 Hon Maryan Street: Leave to table the Regulations Review Committee advice to the Intelligence and Security Committee—

💬 Hon Christopher Finlayson: No, that’s already in the public domain.

💬 Hon Maryan Street: It has not been.

The CHAIRPERSON (H V Ross Robertson): It has been objected to.

“Dulce et Decorum est”. It is fitting and proper that every good New Zealander opposes Part 1 of this Government Communications Security Bureau and Related Legislation Amendment Bill, because what it is doing is legalising John Key’s practice of having his secret police spy on law-abiding New Zealanders. Where are the hopes and dreams of our forefathers who died and who fought in world wars for future generations, in the hope that we may live in a democratic society? Where are our hopes and dreams that we will live in a democratic society, when this Government would allow secret police to spy on law-abiding New Zealanders?

Where is democracy? New Zealand is turning into a police State. We need only have a look at the Dominion Post this morning. The call has gone up by the police: “No drinking—no drinking.” After a certain time, that is it. What has ever happened to education? What has ever happened to this Government, actually? Instead of cutting money from the police, we should be putting money into the police, so that we do not have these Draconian-type measures. This is a step back in time. We have seen the SS, we have seen the KGB, and now we have John Key’s secret spy police.

People jump to conclusions. Words can be twisted and actions can be misinterpreted and guided with evil intent. As someone who has been spied on, as someone who has had their telephone records leaked and used with evil and libellous intent, I feel I am qualified—more than qualified—to speak on this, and I can confirm that it is a violation in the extreme.

Actually, even if we deviate a little and we look at what has happened with Fonterra, where that has been twisted and turned, has anybody in the world died? No. Has anybody in the world been violently ill? No. Fonterra was open in its administration. It found something that could possibly cause an illness and it let the world know. But those who would twist and turn it have twisted and turned it, and now we have a situation where New Zealand’s reputation is at stake and all New Zealanders want to have a say. I look forward to when we have good, informed debate on this. Let us take a look at what happens to Fonterra in a few weeks’ time, and I hope sanity prevails.

When I think about democratic rights—all over New Zealand, in other areas, this Government is stomping and trampling on New Zealanders’ democratic rights. We need look no further than snapper. Here we have a police State, and the Government is going to say that, no, New Zealanders cannot even have the democratic right to feed their family. It is absolutely appalling.

I turn now to Supplementary Order Paper 327, which is in my name and which amends clause 6 within Part 1. Although the bill is odious, I will propose and support measures that might strengthen it. As reported from the Intelligence and Security Committee, a new section 8CA would be inserted by clause 6 “to provide for a set of principles that would underpin the performance of the Bureau’s functions.” It sounds good, but the wording is essentially window dressing.

So to add some meaning to the wording, two amendments are needed. The first adds a new subsection (1)(e), which says that the Government Communications Security Bureau (GCSB) must act “subject to effective, thorough, and genuine oversight.” At first blush, Government members might think that that is little different from the existing subsection (1)(d), which says that the GCSB must act “in a manner that facilitates … oversight.”, but there is a difference. The existing wording, that it must act “in a manner that facilitates … oversight.”, does not require that there will actually be oversight. My new subsection (1)(e) does add that requirement, so I think it is appropriate to seek the support of the Committee for that.

The second change is to turn round the subsequent subsection (2) of section 8CA, as reported from the statutory committee. This says that the principles underpinning the performance of the Bureau’s functions do not “impose particular duties on, … the Bureau,” and its people. [Bell rung]

I raise a point of order, Mr Chairperson. Because I know that you are going to be asked a particular question now, I would just like to seek an assurance from you and to point out to you that I would accept that the first 3½ minutes of the last speech were not strictly on Part 1 of the bill.

I would like to point out that the member Brendan Horan has not had the opportunity to debate Fonterra and other issues because he does not get an opportunity in the urgent debates or the general debate. I ask that you give a little more leniency for irrelevancy in this particular case. If you look at it carefully, after the last two substantive contributions, which were both on the technical detail of the bill and adding new material, I think it would not be fair to the Committee or other members if, because a member who does not normally get an opportunity to contribute on the other matters slightly muddies the waters, we lost the opportunity to continue the strong, direct, substantive, and important debate.

The member Brendan Horan is an Independent member. He has had 5 minutes, which is more than you would normally expect for somebody in his particular circumstances. It is up to him to speak directly to the bill from the outset, and the Committee should never set the precedent of allowing a person to continue for longer because the first 3½ minutes of his speech were irrelevant.

I was in no way advocating for a further 5 minutes for the member—in fact, I think I would almost plead for it not to happen—but the point I was making was that other members should not be penalised by his irrelevancy.

Opposition members have now had, on their own, more than 2 hours debating this particular part, and that is notwithstanding any particular calls on this side of the Chamber. It has already been 2 and a bit hours.

I thank the members for their contribution. I had considered whether I should call the member again, but I decided not to.

I move, That the question be now put.

I am very tempted, but I am going to hear someone who has not spoken in this debate yet.

I am very pleased. I think there is still a lot of ground that needs to be covered in relation to Part 1 of this Government Communications Security Bureau and Related Legislation Amendment Bill. In particular, I want to speak to new section 8CA(1), inserted by clause 6 in Part 1, which comes under the heading “Principles underpinning performance of Bureau’s functions”.

There are many broad themes that many members of this Committee have traversed about the bill, and I think these have been covered well. I think the reason for Labour’s opposition to this bill—that the Government has not made the case for expanding the powers of the Government Communications Security Bureau (GCSB), and it does not give New Zealanders the confidence that there is proper oversight of the GCSB to ensure that their privacy is protected—is a case that my colleagues have begun to make very well. I am sure there is much more that we need to add to this.

If I can return to new section 8CA(1)(a), it states that “In performing its functions under this Act, the Bureau acts—(a) in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment:”. So it is this issue of human rights, and particularly the submission from the Human Rights Commission, that I want to spend some time speaking to in this call on Part 1 of the bill.

The Human Rights Commission did take an unusual step in exercising its statutory power to issue a report directly to the Prime Minister because of the seriousness of the issue raised in the bill. John Key may have rubbished the submission, and he tried to downplay its significance by saying that the Human Rights Commission did not get its submission in on time, but this is more significant than a submission, and it should not be brushed off like that. That is why members on this side feel that under Part 1 of this bill, and particularly in relation to proposed section 8CA(1)(a), the issue raised by the Human Rights Commission deserves a full debate in this Committee, and needs to be considered with a great deal of seriousness. So if we look at new section 8CA(1), this incorporates the principles underpinning the performance of the bureau’s functions so that they are the same as those in the New Zealand Security Intelligence Service Act and include acting impartially.

When the Human Rights Commission did issue its report to the Prime Minister, we on this side of the Chamber think that it was a very thorough and very thoughtful submission that was put to the Prime Minister on the issue of human rights, which is covered in this clause, under Part 1. The Human Rights Commission informed the Prime Minister that it considered that “what is proposed in this GCSB Bill is too wide-reaching. It does not provide adequate oversight, and makes inadequate provision for ensuring appropriate transparency and accountability of those who administer the legislation. It does not provide for a legal regime containing sufficient safeguards against abuse of power and to facilitate a proportional approach.”

The primary recommendation of what the Human Rights Commission had to say in this report that it issued to the Prime Minister is “that a full and independent inquiry into New Zealand’s intelligence services be undertaken as soon as possible.” This primary recommendation was supported by five further recommendations.

This report and these concerns were issued to the Prime Minister, because one of the principles underpinning the performance of the bureau’s actions should be, according to this bill, the human rights of New Zealanders, and these should be in accordance with all New Zealand law. When we have the serious case of the Human Rights Commission writing to the Prime Minister to say this is not so, then we have concern.

This is the reason for Labour’s Supplementary Order Paper 305 in this area. David Shearer has introduced Supplementary Order Paper 305 to provide that an independent inquiry into the purposes and functions of the bureau take place, and will take place within 6 months of the bill’s passing, and that the bill currently being passed will expire within 1 year. This goes some way to address many of the human rights concerns that have been raised by the Human Rights Commission, and these are concerns that we do need to take full note of.

I move, That the question be now put.

The question is that the question be now put.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): Well, I am putting the question.

💬 Hon Trevor Mallard: Well, it goes to the question of whether a member who has previously had a call on this bill can—

💬 Hon Member: He can’t. He can’t.

💬 Hon Trevor Mallard: No, under the rules he can move a closure but only if he can get the call. There are a number of members who have not yet had a call on this particular clause who are calling and have precedence over that member for the call. I accept that if he gets the call properly he can move it, but my submission to you is that because he has done it before, he cannot get the call again before members who have not yet spoken on it.

The CHAIRPERSON (H V Ross Robertson): Can I just say to the member that whenever a question is being put to the House the interruption of business is deferred until the question is determined. So the question is that the question be now put.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I just want to make absolutely clear in relation to that last point of order that I took my point of order before you had completed putting the question. You had not put the question, and I ask you to rule on the substance of my point of order—that is, that you cannot give priority to a member who has already spoken for the call over a member who has not, other than when it is the Minister.

💬 Tim Macindoe: The Standing Orders and Speakers’ rulings make it very clear that it is the Chairman’s call and the Chairman’s decision. You have made your ruling, Mr Chair, and I invite you now to uphold it.

The CHAIRPERSON (H V Ross Robertson): Well, I understand, of course, that I can call anyone whom I so choose. In this case I called the honourable member Mark Mitchell. There the matter rests.