Government Communications Security Bureau and Related Legislation Amendment Bill

I thought it might be helpful to the Committee—I will just let Mr Tisch into the Chair, and thank you for your great service, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): I’m here.

And I hope I get 15 extra seconds—oh, you can start me again, if you like.

I thought it may be helpful to the Committee if I take honourable members through the key aspects of the proposed amendments in Part 2, which deals with the Inspector-General of Intelligence and Security Act 1996. These proposed amendments are designed to increase oversight and to, as it were, beef up the office of Inspector-General of Intelligence and Security. Under section 5 of the current legislation the inspector-general must be a retired High Court judge, and the term of the appointment of that person is 3 years, which is renewable indefinitely. The only statutory provision in this legislation is the inspector-general, who has the ability to hire staff necessary to carry out the functions of the office—and that is a reference to section 10.

The bill proposes a number of major changes. The first is that the requirement to be a retired High Court judge is removed, and the aim of that is to provide a greater pool of candidates and experience to fill the role. The term does, however, remain at 3 years, but an individual can serve only two terms. There is a new statutory position of Deputy Inspector-General of Intelligence and Security. That person will have all the powers of the inspector-general but subject to their control, and it is created to bolster the capacity of the office—a bit like, I guess, the Deputy Judicial Conduct Commissioner. What the bill does is recognise the expanded role of the office and help the inspector-general, and, indeed, the Government will be making greater resources available to the inspector-general to carry out the proposed expanded role of the office.

We then come to the functions of the inspector-general. Under the current legislation the inspector-general has wide-ranging functions to review the policies and the work of the intelligence agencies, but I note that own-motion reviews under the 1996 Act are subject to the concurrence of the Minister. This changes quite significantly because the requirement for ministerial concurrence is removed, and this will give greater autonomy and independence to the inspector-general. The bill also adds—importantly, without limiting the general nature of the functions of the office—a function of auditing compliance policies and procedures. Very, very importantly, I refer to clause 31, which will amend section 11(1)(da) to provide the ability to conduct or carry out spot audits.

The next issue concerns consultation with other oversight bodies. The inspector-general at the present time can communicate with bodies such as the Privacy Commissioner, the Human Rights Commission, and the Auditor-General when conducting inquiries. Importantly, under the bill the Independent Police Conduct Authority is added to the list of agencies with whom the inspector-general can communicate.

I want now to refer to reports of the inspector-general. Under the current legislation the inspector-general prepares an annual report and a report on each inquiry that he or she undertakes. There are limitations on the publication of reports due to the security classification. Under the proposed changes the inspector-general’s annual report must certify the extent to which each agency’s compliance systems are sound, and the inspector-general will also be required to make an unclassified version of their inquiry reports publicly available on an internet site that will be maintained for the inspector-general. The aim is greater transparency and greater public scrutiny.

The final point is the advisory panel. The only statutory provision in the 1996 legislation, as I said, is the inspector-general. As I said, that person has the ability to hire staff necessary to carry out the functions of the role, which are currently contained in section 11 of the Act. The bill will insert a provision for an advisory panel to be a sounding board for the inspector-general. The board consists of the inspector-general and two independent members. That is actually a matter that is referred to in Mr Dunne’s Supplementary Order Paper. I refer to it now because I think it is a very good suggestion, a very sound suggestion, and one that the Government is very happy to support.

So in general terms, what we are doing here is addressing issues of transparency and oversight and also increasing the resources of the office to reflect the increased heavy responsibilities of the inspector-general.

Part 2 of the Government Communications Security Bureau and Related Legislation Amendment Bill is significantly better than Part 1, which we were just addressing. Part 1 grossly—

💬 Hon Phil Goff: Everything is relative.

Exactly, everything is very relative, Mr Goff. Part 1 grossly expanded the powers of the Government Communications Security Bureau (GCSB) without adequate oversight mechanisms and in a way that many New Zealanders are very uncomfortable with. What Part 2 does is make some changes and improvements to the oversight of the GCSB, and for that we are grateful.

What I want to do in this call and subsequent calls is work through the way in which these changes may be useful but, in the view of the Labour Party, do not go far enough to provide New Zealanders with the assurance that the role of the Inspector-General of Intelligence and Security is a valuable and worthy one that they can have confidence in and one that will give a GCSB that New Zealanders can have trust and faith in and know the role is looked after. In principle, that is because it remains a reactive role. It remains largely a reactive role, and a reactive role that still keeps the role of the Prime Minister—or the Minister responsible for the GCSB, who has always been the Prime Minister—right at the centre, with control over virtually every aspect of the operation of the GCSB, from governance effectively down to management.

What I want to do at the outset is say that we support the notion of the creation of the role of the Deputy Inspector-General of Intelligence and Security. We think this will be very useful. It was clearly highlighted in the Kim Dotcom case that Justice Neazor was stretched when it came to trying to deal with the issues. When it then came to the illegal spying on 88 New Zealanders, the capabilities of the inspector-general were well and truly stretched. We do support Part 2 in so far as it creates that deputy inspector-general role, and also in terms of opening up the way in which complaints can be made and dealt with by the inspector-general, which is contained, as the Attorney-General has just told us, in clause 31, which amends section 11 of the Inspector-General of Intelligence and Security Act. Those are useful changes.

But there are severe limitations around how valuable those changes will be, and that is what I want to work through now. If we look at the proposed new section 5 in clause 29, we see straight away where some of the problems start. Proposed new section 5(2) states: “The Inspector-General and Deputy Inspector-General must be appointed … on the recommendation of the Prime Minister following consultation with the Intelligence and Security Committee.” Once again I just want to recap where we have the Prime Minister, and the different roles that the Prime Minister has in relation to the GCSB. We have the Prime Minister appointing the Director of the Government Communications Security Bureau. We have already seen with the appointment of Ian Fletcher how the Prime Minister’s role in that process can be abused when the Prime Minister cuts across a process that is already in place, calls his friend up, tells his friend to speak to the chief executive of the Prime Minister’s department, who is on the appointment panel, and only one person gets interviewed for that role, which is the Prime Minister’s friend, and then that person gets appointed.

💬 Hon Annette King: And the head of the Prime Minister’s department.

That is right, the head of the Prime Minister’s department, as Annette King reminds me, met with that person while that process was under way. That is our concern about that. The Prime Minister is appointing the head of the GCSB, the Prime Minister is chairing the oversight committee of the GCSB, and here now, in clause 29, we have the Prime Minister responsible for appointing the inspector-general and the deputy inspector-general.

What we on this side of the Chamber are saying is that when we look at the way in which the inspector-general’s function is set up, we need to move with the times. This legislation was created in 1996. If we fast forward to 2013, people’s concerns about the role of security and intelligence agencies and the kind of information that is being collected mean that this watchdog role that we are talking about in Part 2 is more important than ever. We actually do have to recognise that things are different than they were in 1996. The public have a higher expectation of the kind of oversight and watchdog role that will be in place.

What I venture to suggest is that what should be here in this part is the role of Parliament in this—the role of Parliament. We do have some change to that, as under amended section 11 in clause 31, a member of Parliament can initiate an inquiry. But the whole process of the appointment of the inspector-general is one that I venture to suggest should end up being an Officer of Parliament - type role in the long term. That would be the kind of issue that would be raised in the review that the Labour Party has been proposing. My personal view is that we should be moving that role more towards an Officer of Parliament position. I think that is an important step we could take to restore confidence in the role of inspector-general. That is not what is here.

We have some improvement here in the new section 5 in clause 29, which creates a deputy inspector-general role, but we on this side of the Chamber believe that this role of inspector-general should be considered for being a role of an Officer of Parliament. We know from the roles that the other Officers of Parliament play—the Parliamentary Commissioner for the Environment, the Auditor-General, and the Ombudsmen—that those roles are one step removed from the day-to-day process of the Government. That is what will restore confidence in the GCSB and in the inspector-general’s role—if New Zealanders know that that person is working, effectively, on behalf of parliamentarians, who work on behalf of them. That is the direction the Labour Party would like to see considered here. Unfortunately, this clause does not go that far. Although we would like to be able to support all of the changes that are in this bill, in the end, when the bill does not give the oversight and the watchdog role the power that we believe it needs, then we will not be able to support that aspect of the bill.

I want to go on to talk a little about the proposed new sections 15A to 15F in new clause 33A, around the advisory panel. Again, it is a useful step forward that there will now be a wider group of people looking into the way that the GCSB does its work and supporting the role of the inspector-general, but again it is a very low-key role. It is about providing advice. New section 15B(1) states: “The function of the advisory panel is to provide advice to the Inspector-General.” It can do that on its own initiative, and that is good, but again that does not serve to increase New Zealanders’ confidence in the way in which the advisory panel would work.

If we are going to have an advisory panel like this, we on this side of the Chamber would like to see it have a stronger role. I actually think that if we got the officer role of the inspector-general correct, if we created it as an Officer of Parliament, then the role of the advisory panel would not need to be significantly changed from the way it is here in the bill. But in the absence of that change, then I think the role of the advisory panel needs to be stronger. I want to pay respect to Justice Neazor, but it was quite clear in the process around Kim Dotcom that when Justice Neazor did his report into what happened in the Kim Dotcom case there were major inaccuracies in the report that he provided. I do not believe he was in a position to play the watchdog role that New Zealanders would expect.

This fundamentally comes back to the way in which the GCSB goes about its work. Although we all understand that an intelligence agency has to act in secret for a large part of what it does, the confidence-building measures that sit round that have to therefore be even more robust. If we are going to allow the agency to have the powers that it has even under the current legislation, let alone the extended powers, then we need the robust oversight and watchdog roles to be there. We simply do not believe that the advisory panel, as it is constituted here, will do that. I am sure that the people appointed to it will be excellent people. One of them has to be a lawyer. Mr Finlayson in future times, looking for a new career, may choose to take on that role—

💬 Hon Annette King: Very soon.

Very soon, perhaps after November next year, he may choose to take on that role. So there will be people on this panel, I am sure, who will be learned people—

💬 Hon Trevor Mallard: It would probably be good to appoint him.

Yes. But if they are not given the teeth to actually have proper oversight of the inspector-general, then on this side of the Chamber we simply do not believe that that is a sufficient role.

Under the new section 15E as set out in clause 33A of the bill the advisory panel is provided with clerical and secretarial services by the Department of the Prime Minister and Cabinet. It would be fair to say that if the Department of the Prime Minister and Cabinet is providing secretarial services—if the Henry inquiry is anything to go by—then this clause should not pass, because the role that the Department of the Prime Minister and Cabinet played in the Henry inquiry was to ask directly for the records of journalists and to invoke the Prime Minister’s office in doing that.

We have to be careful if we pass this clause into law, as we would be giving the Department of the Prime Minister and Cabinet a role with an advisory panel that is meant to be separate from executive Government. I think it is actually quite important, if we are going to set up an advisory panel like this one, that it has its own staffing and it has its own ability to play its role. Otherwise, the perception in the mind of the public will be reinforced that the Prime Minister, who has a large degree of control of these agencies, will also be able to control the advisory panel. So my view here is that although there are some useful changes that are being brought in by Part 2, they simply do not go far enough, and they will not restore the confidence of New Zealanders in the GCSB or in the inspector-general.

I rise on behalf of the Green Party to speak about Part 2 of the Government Communications Security Bureau and Related Legislation Amendment Bill. This part is particularly related to the role of the Inspector-General of Intelligence and Security. I agree with Mr Grant Robertson that there are some improvements in terms of the role of the Inspector-General of Intelligence and Security in this part, but, none the less, it remains fundamentally flawed. The improvements are around, essentially, resourcing, which is the deputy role that has been introduced and increasing the pool of candidates who can be appointed to this position. There are some good changes.

However, I think there is a fundamental structural problem that we are dealing with here, and it relates to Part 1. In Part 1 of this bill we effectively gave dramatically increased powers to the Government Communications Security Bureau (GCSB) and the SIS. In Part 2 we are saying the Inspector-General of Intelligence and Security will be the watchdog as to whether those powers are exercised properly.

The problem is that the Inspector-General of Intelligence and Security, even with the best intention in the world, may have to sign off things as lawful and acceptable that they consider to be gross breaches of human rights and gross breaches of privacy because they have been made lawful by the changes made to Part 1 of the bill. That is, I think, the fundamental conceit in the changes made around the oversight provided by the Inspector-General of Intelligence and Security, because if on the one hand you allow the GCSB to have significantly increased powers—and, as we saw, they are very focused on New Zealanders, those increased powers under Part 1 that this bill provides. When the inspector-general is facing applications by the GCSB to do certain things and is trying to provide oversight to make sure that the GCSB is acting lawfully—of course, the GCSB has acted unlawfully over 80 times previously. When the GCSB makes those applications or does those actions and the inspector-general is meant to provide oversight, the inspector-general will have little choice but to say that actually it is lawful—that it is lawful to engage in mass surveillance of New Zealanders because the law says the GCSB can do it. I think that is the fundamental problem in the way that this is actually so flawed. The inspector-general will be forced to agree, forced to sign off and give some kind of stamp of approval, to actions that they may otherwise consider to be ethically wrong.

The other part of this that I want to talk about is the much better framework that we could have had introduced at this point, which was essentially to make the Inspector-General of Intelligence and Security an Officer of Parliament, rather than a creature of the executive—appointed by the executive, if you like. I was very pleased to hear Mr Robertson’s contribution on that point, because the Greens have argued for many years that the Inspector-General of Intelligence and Security should be an Officer of Parliament. We have had disagreements with Labour about that in the past. I am very pleased to hear Mr Robertson now say that he personally, at least, agrees with that position. I think that offers hope that in the future we can actually make the inspector-general position an Officer of Parliament.

Running alongside that, of course, would be the need to report to a select committee of Parliament. That refers to Part 3, which is to make the Intelligence and Security Committee, rather than a statutory committee, a regular select committee of Parliament. So the much more proper way, I think, to provide oversight of these kinds of agencies is to have an inspector-general who is an Officer of Parliament independent of the executive and so able to provide that kind of independent oversight of what the executive is doing, because they report to this House—to Parliament—to this branch of Government, rather than having the very close relationship with the executive that the inspector-general has. Then, running alongside that, I think also that you would have to have the Intelligence and Security Committee established as a committee of Parliament and operating under the regular Standing Orders, rather than a statutory committee with no powers.

The other part I would just like to mention here that I think is important and is probably not really understood is the constraints that will be on what the Inspector-General of Intelligence and Security can say. That relates to the amendments in clause 34 to section 25 of the Inspector-General of Intelligence and Security Act, which is about reports. What the changes here mean is that if the Inspector-General of Intelligence and Security finds something that they want to tell the public about, they will have significant constraints on their ability to tell the public about what they have found. As it says here in new section 25(8)(b), in these kinds of reports “any matter quoted or summarised in the report”—by the inspector-general—“must be given a security classification not less than the security classification of the matter quoted or summarised.”

What this means is that the GCSB can, for example, categorise a piece of information at a very high level of security, which means that very few people are allowed to see it. They might call it top secret, for example. Then if the inspector-general finds something remiss around this and tries to introduce it into one of their reports, that report will not be able to be published to the general public, because the same security classification that the GCSB applies will have to be carried over to the inspector-general’s report. This seems like a minor technical issue, but it is a very significant constraint on the ability of the inspector-general to talk to the public of New Zealand. If the inspector-general’s role is to provide a check on what the GCSB is doing, to provide a watchdog function, a key part of that watchdog is that they should be able to communicate to the people of New Zealand. That will be one of their key powers—the ability to write these reports. They will not be able to make these points because if the material that they are quoting from, or even summarising, is classified as top secret, it cannot go in the public version of the inspector-general’s report. The inspector-general will be constrained by the very agency that they are meant to be the watchdog over, in their ability to report what that agency is doing, by these sections. I think that is one of the basic problems with this.

I just want to also touch briefly on a couple of amendments—or Supplementary Order Papers as they are called in the technical language of Parliament—to this part that I have moved. One is set out on Supplementary Order Paper 311 and that is simply to add privacy as one of the policies that the inspector-general can order. We think that privacy has been a critical issue in a lot of these debates around the GCSB and other issues related to it, and so we think it is important that privacy be added to the list of the policies that the inspector-general can order, as a key part of the legislation.

The other part of it—and this is Supplementary Order Paper 312—is an amendment to clause 34. What we are trying to do is make sure that when the inspector-general reports to the Minister about an issue, as currently happens, the Minister then responds to that. But the Minister does not have to provide that response to the Intelligence and Security Committee. So the Intelligence and Security Committee will never see what the Minister’s response is to the inspector-general’s report. It may, but it is not a requirement that it does. So essentially we are replacing “may” with “must”. The Minister must provide their response to an inspector-general’s report to the Intelligence and Security Committee.

I think this logically follows. If we want the Intelligence and Security Committee to provide the kind of oversight we are asking it to provide over these agencies, then it needs to see what reports the inspector-general is writing about the GCSB and other agencies—the SIS, in particular. The Intelligence and Security Committee needs to be able to see those reports, but it also needs to be able to see the Minister’s response to those reports. How can the Intelligence and Security Committee provide the oversight that we are asking it to provide if it does not know necessarily what the inspector-general is saying, but particularly if it does not know how the Minister is responding to any concerns that the inspector-general is raising? The Intelligence and Security Committee is very constrained in its ability to inquire into, for example, the operational matters of the GCSB and the SIS, which means that the Intelligence and Security Committee is very limited and quite reliant on the Inspector-General of Intelligence and Security to provide a watchdog function over the operational matters of the GCSB and also the SIS.

If the inspector-general’s reports on those operational matters are not going to the Intelligence and Security Committee, and if the Minister’s response to the concerns being raised by the inspector-general are not going to the Intelligence and Security Committee, how on earth can that committee be confident that it is providing sufficient oversight of the operations of the GCSB when it does not even know necessarily what is going on in the communication between the inspector-general and the Minister, or in this case the Prime Minister, and the Prime Minister’s responses to the concerns that the inspector-general is raising?

That is why I have moved the amendment set out on Supplementary Order Paper 312, to make sure that the Intelligence and Security Committee gets access to those particular reports. In general, I think it is important to make the point on the oversight issue that so many of the positions—in fact, all of the positions—that provide the oversight are appointed, essentially, by the Prime Minister. There is a fundamental problem of oversight. Even the Intelligence and Security Committee has a Government majority—the Prime Minister and its allies. There is, I think, a fundamental lack of oversight here.

Part 2 of this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill, deals with the role and the powers of the Inspector-General of Intelligence and Security. The Attorney-General rightfully pointed out that this is about oversight for the powers of our secret intelligence agencies. He then proceeded to give assurances that this oversight was adequate, which I think most New Zealanders, and certainly members on this side of the Chamber, found absolutely underwhelming.

The bill moves cautiously and marginally in the right direction, but the changes are cautious; they are marginal. When you scratch below the surface you see that they do not give you any assurance at all that there will be oversight. The problem is this. When we decide that we want intelligence agencies, they are given enormous powers that no other body in New Zealand possesses. They can do things that for anybody else would be breaking the law. They can intrude into privacy. They can exercise those powers without any public accountability—without any knowledge by this Parliament or, by the wider public, through the media.

When you give powers to an organisation and you do not create accountability, then you create the basis for the abuse of powers. We are not simply being conspiratorial around this. We have seen examples in New Zealand and outside New Zealand where this happens. The enormous breach of powers by the National Security Agency in the United States was revealed only because a whistleblower, Edward Snowden, actually made it public. Otherwise Americans would not know that literally hundreds of thousands of them—none of them, or very few of them with connections with any terrorist-type organisation—are under surveillance.

We saw that breach of power by the Government Communications Headquarters in the United Kingdom, and we have seen the breach of power here. This is what this bill is about. It was initiated by the breach of power by the Government Communications Security Bureau (GCSB) illegally spying on Kim Dotcom. That is what it is about. We are seeing the abuses of power even in the corridors of this building, where people are having their swipe cards, their phone records, and their emails improperly spied upon and passed across to people who should not have them.

Let us not pretend that the issue of accountability and the need for safeguards is not a real issue. It certainly is. I support the appointment of a deputy inspector-general, but an inspector-general and a deputy inspector-general will hardly be adequate to do the work that needs to be done with the expanded powers of the GCSB. I understand from informal discussions that there will be an office of assistance provided to them, but where is the guarantee of that? Where we have got Officers of Parliament, we have a degree of independence that the inspector-general does not have. But even where we have got Officers of Parliament like the Ombudsmen, we see them starved of resources so that they have a huge backlog of work and they cannot do the job this Parliament set for them. It is a deliberate action by the Government to starve them of resources because the Government likes to exercise power and not be curbed in the exercising of that power. That is the nature of this Government, in particular. So we need to be sure that there is adequate resourcing for the inspector-general, and we have seen and heard no assurances of that.

The functions of the inspector-general are expanded, and, again, I approve of that. They can inquire on their own motion—the Attorney-General made a big point of that, did he not—without the concurrence of the Minister. But when you look at the bill that was introduced to the House, what did it say? It said that he or she could start inquiries with the concurrence of the Minister. So the natural instinct of Mr Key and the National Government was to have an Inspector-General who was so hobbled that they could not do anything, and it was only through submissions to the select committee and pressure from the Opposition that Government members were so embarrassed that they removed that. So I welcome the fact, Attorney-General, that you removed that, but do not come into this Chamber pretending that you think it is good that he can be independent when the legislation that you brought in said that he could not be independent. You have had to do a U-turn and we welcome that U-turn, as we so often welcome the U-turns that happen only when they are forced on the Government.

It is good that the inspector-general can advise on the impact of the activities on individuals. It is good that the inspector-general can report on the propriety of the activities of the agencies. But, again, can the inspector-general do this? Does he have the independence to do it? And is the nature of the inspector-general going to be such that that person has the strength of character that he or she will do that? That comes to the point about appointments. Actually, however it is dressed up, “appointed by the Governor-General”—we all know what that means: the Prime Minister tells the Governor-General to do it—means the Prime Minister makes the recommendation. He may consult with the Intelligence and Security Committee, but we know that this Prime Minister hardly has that committee meeting. It meets a couple of times a year. I was on it for 3 years. He treated it with absolute contempt. So let us not be mistaken—this Prime Minister will appoint, on his own viewpoint, the inspector-general.

We have seen an abuse of those appointments by the Prime Minister before, have we not? That is another scandal that hit. The very chief executive officer of the GCSB was a mate of the Prime Minister. Did he own up to that, right up front? Not on your life. He had to have it dragged out of him, and then he said: “I haven’t seen him for years.” Then we found out that he had been having dinner with him, quite regularly. So how can the public have confidence in the integrity of the Prime Minister when he abuses that appointment process for the very head of the GCSB that this legislation regulates? In the process that he followed, there were no interviews. He nominated him. He pointed him out. The poor State Services Commissioner was totally overridden and was finally forced to come out and say that he did not approve of the abusive process of the Prime Minister.

So, Attorney-General, you are telling us to have confidence in an inspector-general who will be appointed almost solely by the Prime Minister when we have seen this Prime Minister, John Key, abuse that process already. That is why I say, Attorney-General, that your assurances will not carry much weight with the people of New Zealand and certainly no weight with the people on this side of the Chamber.

Then we have an advisory panel. That is exactly the same thing. It has two people. One of them is a lawyer. Well, we should be reassured by that. Is not the Minister of Justice a lawyer? Does she not always follow due process? Bain case—yeah! I fear that this advisory panel is nothing more than a toothless tiger. In fact it is toothless; it is not even a tiger.

There is nothing in this legislation that suggests that that advisory panel can be effective, and, again, it is appointed by the Prime Minister, who, we have just heard, has time and again abused the process of appointment. He has abused the process of appointment so much that he appointed the chairman of his own electorate committee to a position governing broadcasting, where one of the conditions of appointment should be independence and impartiality. He appointed a dyed-in-the-wool National Party person—the chairman of his own electorate committee—to a position where he is meant to be independent in terms of how broadcasting operates.

That is another example of this Prime Minister undermining and detracting from the power of the fourth estate, and the Attorney-General wants us to accept his assurances. I am sorry, Mr Finlayson, those assurances are not backed up by track records. They are not backed up by legislation that will give this Committee confidence. You see, the only curb on the power of the security agencies is, effectively, the Prime Minister. The Prime Minister, on one hand, seems so uninterested in his job that he does not even know when his own GCSB had broken the law. He said that for 7 months he did not know that the GCSB had broken the law. Can you believe that? He did not know when Bill English moved a ministerial certificate denying access to the courts of knowledge that the GCSB was even involved. That was the Prime Minister’s own deputy and, actually, the Acting Prime Minister.

So we have a Prime Minister who, first of all, either does not know or does not tell the truth about not knowing. But regardless of who the Prime Minister is, you cannot simply have one person required to hold the safeguards against abusive power by the security agencies. And it is dumb to have the Prime Minister do that because it is his Government that is abusing the powers, so what sort of safeguard will he be? In the United States the President has two independent committees. One is the House of Representatives and the other is the Senate, chaired often by members of the other party. There is no adequate oversight here. There are no safeguards that will satisfy New Zealanders.

This is my first opportunity to take a call on the Government Communications Security Bureau and Related Legislation Amendment Bill. In speaking on Part 2, which is supposed to be about transparency and oversight, I do want to remind the Committee of the context in which we are debating transparency and oversight. I want to make it clear from the outset that although there are some improvements in Part 2, nothing is going to satisfy the Opposition’s call for a full inquiry into the reasons why we need this bill in this shape and form at all. So that needs to be said at the outset. Nothing in Part 2 is going to take away from the very valid call coming from the Labour Party to ensure that there is a review and that we actually have a full inquiry—a full inquiry—into the reasons, so that we know why we are doing what we are doing.

Why we are so nervous about this—why New Zealanders are so nervous about this bill—and why Part 2 needs to get it right is that the Government Communications Security Bureau (GCSB), unlike the SIS, is an intelligence security agency that actually communicates with other countries’ intelligence security agencies. I think that that is a point that has sometimes been lost in the debate. This is different from the SIS. It is different from the way in which the police operate. It is different from the way in which other entities operate. New Zealanders are particularly nervous about it because it communicates with other countries’ intelligence agencies, as well.

I think New Zealanders are right to be nervous about that because they are still reeling from seeing our country’s laws being sold off to Warner Bros. They are concerned about the influence of big corporations and other countries on this Government’s performance and on this Government’s decisions and on our national security. So I think they are right to be concerned about it in that context.

What Part 2 does is attempt to give some assurances to the public of some independence, some oversight, and some transparency of what has been to date a completely untransparent process—if there is such a word—in a situation where New Zealanders and the Opposition have had to drag every single piece of information out of the Prime Minister while he has kicked and screamed and tried to stop us from knowing what has been going on. It is in that context that Part 2 becomes so important.

So the Minister in charge, who is, in most instances, the Prime Minister himself or herself, gets to actually choose the Inspector-General and the Deputy Inspector-General of Intelligence and Security, and that is right and that is proper. But I think, as my colleague the Hon Phil Goff just traversed in his speech in this debate, New Zealanders have lost faith in the ability of this particular Prime Minister to make independent appointments and to make appointments that are in the best interests of the nation and in the best interests of the country, rather than in the best interests of whom he happens to be chummy with, or who he has been chummy with in the past.

I think, probably, that if we look at the current Prime Minister, one of the most difficult choices he might have is whether to appoint a childhood friend to this role, whether to choose a former member of Parliament from the National Party for this role, or whether to choose Amy Adams’ sister or Hekia Parata’s husband. He will have to choose one person only for the important role of Inspector-General of Intelligence and Security. I think that is something that New Zealanders are becoming increasingly worried about. What is being seen is appointments made, particularly to positions that ought to be independent, such as families commissioner roles—those types of roles that are actually designed to keep the Government and call it to account—and those most recent appointments by that Government opposite have been completely without transparency and without independence. I think that is a major concern.

One of the ways in which Part 2 attempts to overcome that concern is to appoint an advisory panel, but I agree with some of my colleagues who have spoken already on this particular part that it seems as though the advisory panel might be quite toothless. I also note that there is the ability for the Inspector-General and the Deputy Inspector-General of Intelligence and Security to consult some of the other bodies that I have actually just recently referred to. So they can consult the Controller and Auditor-General, and they can consult the Ombudsmen, the Privacy Commissioner, a human rights commissioner, and the Independent Police Conduct Authority. They can consult those people, but I am interested in knowing whether those people, who have got particular roles within our country’s administration as well, have a role of alerting the Inspector-General and the Deputy Inspector-General of Intelligence and Security about any concerns that they might have.

I am particularly interested in whether, in Part 2—and I would be interested if the Minister in the chair would respond to this—the Privacy Commissioner, in particular, can raise concerns the other way. What we know is that the inspector-general can talk with, can consult with, can raise issues with, and can get advice from the Privacy Commissioner, but I would want to know whether, if the Privacy Commissioner has concerns of her own, she can actually have a direct line of communication with the inspector-general and raise those concerns.

I do want to just address briefly the membership of the advisory panel. As I said before, unfortunately we have a Government in place at the moment that does have a track record of appointing its friends and its colleagues and its relatives, in fact, to roles that should be independent. So the three-member advisory panel will have the Inspector-General of Intelligence and Security on there as of right, and just two other people, one of whom has to be a lawyer. People have already speculated on this, but there are people who would fit in that category within the Government’s own ranks at the moment. It seems particularly fond of appointing its own to these types of positions and, you know, we may well end up with a family member of a sitting member of Parliament on that advisory panel, as well.

If we were to end up with what sounds like quite a preposterous situation but one, sadly, that is actually happening as part of this Government’s track record on a whole series of other appointments that it has made, would there be a way of contesting the independence of family members of current members of the Government who are appointed to an advisory panel? Would there be a way of contesting and overturning a decision to have perhaps a just very recently retired member of the Government benches on that advisory panel?

If that was at all a possibility—and the way I read Part 2, there is nothing at all in this legislation to prevent the Government from going down exactly that same track—then I think that is another major issue that New Zealanders should be concerned about. Although this all looks like this might give a little bit of accountability and a little bit of transparency to a situation that otherwise we have got very little knowledge and information about, if that were to happen, and if the wrong people, or people who were not independent, were appointed to the advisory panel—it would be laughable actually, to try to pretend that they were at all independent of the Prime Minister and of the Minister in charge—then I think that that brings the whole of Part 2 into disrepute, and means that we would not have transparency and oversight at all over the GCSB.

I just want to reiterate again that the reason the oversight and the transparency in Part 2 is so important is that unlike any of the other intelligence and security agencies—the ones, actually, by the way, that were prevented from coming before the Intelligence and Security Committee and making their submissions, and that worries me too, because I would want to know what the SIS would have to say about Part 2. I would want to know what the New Zealand Police would have to say about Part 2, but we will never know, because the Prime Minister himself actually used his right of veto to stop them from coming forward and telling us what they think about Part 2, so we will never know what they think about it.

But the point I really want to make, and that I want to come back to, is that this is so vitally important because the GCSB is the only intelligence and security agency in New Zealand that, by right, is in communication with intelligence and security agencies from other countries. That is the reason why—

I was not going to take a call on Part 2 of the Government Communications Security Bureau and Related Legislation Amendment Bill, because it is a very self-explanatory part. I thought that the Attorney-General laid out the changes in Part 2 quite adequately. But the contribution of that member, Sue Moroney, who has just resumed her seat, was so nasty and was such gutter politics that I had to take a call.

It is quite interesting because I spent a great deal of time just yesterday with a gentleman called Mike Williams. He just happens to be the past president of the Labour Party. I was talking to him about his previous role with KiwiRail. Was he not appointed by the Labour Government to a significant position in KiwiRail? You see, it is not new that Governments appoint people to positions that they have some connection with. When we are talking about Part 2 of this bill, a huge amount of oversight has been put into the bill to correct—to correct—what was in the Act that the Labour Government passed. So this Government is actually putting more oversight, including a deputy, and much less bias into some of the positions and the management of the Government Communications Security Bureau. That is being done by this Government.

But what really, really is gutter politics is when you start attacking members of one’s family. I just want to say that that member should be ashamed—ashamed—of herself for talking about a bill that is actually dealing with the security of this country, and for resorting to those sorts of low tactics in order to fill up her 5 minutes.

Thank you very much for giving me the opportunity to speak to Part 2 of this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill.

Do not believe the crocodile tears from Anne Tolley. Do not believe the crocodile tears from Anne Tolley, because the Government is absolutely and utterly telling—no, I should not say that. It is not being accurate when it says that this bill does not expand the powers of the Government Communications Security Bureau (GCSB). Part 2 deals with the oversight of the GCSB. In Part 1 there is a massive expansion of the powers that have been given to the GCSB, but there is not a consequential lifting of the standards of oversight in Part 2. So things have got worse, and I think we saw a considerable amount of public concern on the streets—all around the country, actually—a couple of weekends ago when New Zealanders got out there and made their opinions quite clear.

I did want to look at clause 32 within Part 2, and this amends section 12 of the Inspector-General of Intelligence and Security Act 1996. Ironically, section 12 of that Act is titled “Consultation”, because there has been very little consultation on the part of this Government around this bill. For the benefit of those people who might be watching and listening—and that is not said in jest, as I think there will be quite a lot of people who are very interested in the progress of this bill, or lack of it, I should say—it says in the bill that “The Inspector-General may—(a) consult any of the persons specified in subsection (3) about any matter relating to the functions of the Inspector-General under section 11;”, blah-blah-blah.

Those people who can be consulted are: “(a) the Controller and Auditor-General: (b) an Ombudsman: (c) the Privacy Commissioner: (d) a Human Rights Commissioner: (e) the Independent Police Conduct Authority.” I want to spend a bit of time concentrating on paragraphs (c) and (d)—the Privacy Commissioner and a Human Rights Commissioner, who can be consulted with regard to the functions of the inspector-general. The Human Rights Commission took a very bold step in putting forward a report, off its own bat, to the Prime Minister about this bill. It was told not only that its funding would possibly be at risk because of its independent commentary but that its report was put in too late. But it was not actually a submission to the Intelligence and Security Committee; it was actually a report that it put up, by itself, to the Prime Minister because of the concerns that it had around this bill.

As I say, the Human Rights Commission is one of the agencies that can be consulted under the clause 32 amendment in the bill. Let us just hear what the Human Rights Commission had to say about this bill, because it had some very grave concerns. It stated that “a full and independent inquiry into New Zealand’s intelligence services be undertaken as soon as possible.” It went on to say that “we cannot be certain … without an inquiry of this nature … that the correct balance is being struck between protecting national security and the personal security of New Zealanders and protecting the other human rights of people in New Zealand, and what diversions from the correct path may have been taken or could be taken without adequate safeguards and oversight in place.” So we have from the Human Rights Commission, an office that in Part 2 the inspector-general can consult with, grave concerns about this bill. Maybe the consultation is coming a bit too late from this Government. Maybe it should have consulted with the Human Rights Commission before it put this bill to this Parliament.

Also within the amended section 12, under subsection (3)(c), the inspector-general can consult with the Privacy Commissioner over any functions of the inspector-general. Let us just hear what the Privacy Commissioner had to say about this bill, which is being put forward for this Committee at the moment. The Privacy Commissioner, who, again I say, the inspector-general can consult with under Part 2 of this bill, said that it is “because of the complex, dynamic environment that I believe the topic needs to be considered further and in more detail.”—further and in more detail—“In particular, it is not yet clear what type and level of oversight is most appropriate.” So here we have an agency, the Privacy Commissioner, that under Part 2, which deals with oversight, is concerned about the level of oversight in this bill. I go on. The Privacy Commissioner added: “The effects on individuals are potentially very significant, and it is important to get the legislation right.”

They are comments from the Privacy Commissioner, and before that the Human Rights Commission. Those two offices share very, very similar views about this bill to what parties on this side of the House hold. We heard from Anne Tolley on Tuesday, when Part 1 of this bill was being debated, that we were playing politics with this bill. The Labour Party was playing politics with this bill, and we should just get on board and make sure this bill gets passed. Well, I put to you that the Human Rights Commission and the Privacy Commissioner have major concerns with this bill, so much so that they said that there should be an independent investigation, a full review, before we go any further with this bill. Yet this Government trusts the Privacy Commissioner and the human rights commissioner to be consulted if the inspector-general wants any advice around oversight. I put to you that that just does not make sense.

This Government says that it is OK for the inspector-general of our intelligence agencies to go to the Human Rights Commission and the Privacy Commissioner to consult those two offices, when those two offices have very major concerns about this legislation. The Privacy Commissioner actually went on to say much more than that, and I think members on this side of the Chamber will certainly support it. The Privacy Commissioner recommended that “a body such as the Law Commission should be asked to investigate the most appropriate shape of legislation to govern the intelligence agencies in New Zealand.”

💬 Hon Anne Tolley: Talk about Part 2.

Well, I am, because the Privacy Commissioner is put in clause 32 as one of the very people that the inspector-general of the intelligence agencies can consult. As I would like to point out to that Minister of Police, you trust those two offices to be worthy of the inspector-general to consult when the inspector-general has concerns around oversight, yet those two agencies have concerns about the oversight in this bill. That should be concerning to most New Zealanders who have more than a passing interest in this bill, because those two agencies—the Human Rights Commission and the Privacy Commissioner—have major concerns around this bill.

I also want to point to something—it is not lighter—that Grant Robertson certainly referred to in his speech, and that is new section 15E in clause 33A, which is about the clerical and secretarial services to the members of the advisory board, and who supplies those services. It says in new section 15E that “The Department of the Prime Minister and Cabinet is responsible for providing to the advisory panel the clerical and secretarial services necessary for the advisory panel to perform its function effectively and efficiently.” We have seen just how effective the Prime Minister is in running the Department of the Prime Minister and Cabinet—no disrespect to those very good people who work up in those offices. But we have seen in the last week just how much of a farce it can be when John Key does not have a handle on his own department. We had a situation where he said one thing but the fact was something else, and that department held on to—

💬 Hon Anne Tolley: What has this got to do with Part 2?

Well, it has got everything to do with new section 15E, if you want to have a look at the bill, Minister. That department held on to that information for nearly a month—nearly a month. So I do not have confidence in the Prime Minister to run that department well enough if that department is going to have the ability to look after the secretarial services of that advisory panel.

I just want to go back to my very first point, and that is that there is not enough consequential oversight or increase in oversight because of the huge increase in powers that we are giving to the GCSB. We have also got a situation where the Privacy Commissioner and the Human Rights Commission have major concerns with this bill.

This is my first call on the Government Communications Security Bureau and Related Legislation Amendment Bill. It has been suggested that the Minister in the chair, the Attorney-General, has attempted to try to give assurances to this Committee on Part 2, but I would like to say to this Committee that if Part 1 and Part 3 are the bad parts of this legislation, and if Part 2 is supposedly good, then what kind of law do we then have? I am reminded that if you put a two-thirds part of dirty water into a glass of a one-third part that is clean, what you end up with is a murky glass of water—a dirty, stinky, murky glass of water. The point is that, irrespective of the assurances that the Minister has attempted to try to provide in Part 2, the overall bill is bad law. I think that is the message that New Zealanders have received from this particular Government: the result of this bill is one full, dirty, stinky glass of water—or bad law. So, even though Part 2 might be considered as having some merits, small as they may be, the fact remains that overall this is bad law.

I think that the protests in the last week or so up and down this country surely should give some indication to this Government about the strong views that New Zealanders have. I think that the question that most New Zealanders will be asking about as a result of the way this Government is rushing this piece of legislation through is the question of trust: can the people of New Zealand trust the way this Government is dealing with this by legislation? Can the people of New Zealand trust this Government—period?

I say that this is bad law because New Zealanders know that this Government is introducing new and intrusive powers that enable a spy agency to apply intrusive State powers into the privacy of New Zealanders. That is the question that causes people to question the trust factor of this particular Government. Consider the significance of the personalities who have come out publicly and openly in opposition to the way this Government has dealt with this. From Ninety Mile Beach up north to Invercargill—

💬 Dr David Clark: The Mayor of Dunedin.

The Mayor of Dunedin—

💬 Simon O’Connor: How does that member have this information?

Look, it is easy. Read it in the papers. It has been up and down on the front pages of the newspapers about how significantly New Zealanders feel about this Government and the way that it has handled “spy-gate” or “Key-gate”.

Part 2, new section 5 in clause 29, talks about the appointment of the Inspector-General and the Deputy Inspector-General of Intelligence and Security. Again, the question of trust arises, because if the Prime Minister is the one who is now charged with the appointment of the inspector-general and the deputy inspector-general, and we are expected to put our trust and faith in a Prime Minister who circumvented the normal processes of appointment and appointed his mate by abusing the appointment process, that calls into question the trust factor of this Government and the way that it has dealt with this issue.

My colleague Phil Goff talked about Part 2 moving cautiously and marginally. The reality is that Part 2 does not provide any oversight or guarantee of protection from the abuse of power. There is no trust established by simply saying that the inspector-general is going to be appointed by the Prime Minister. What Part 2 of the bill does is create an environment that will allow the abuse of powers, and most New Zealanders now see how the rushing of this legislation is more about hiding and protecting the wrongs that this Government has done rather than attempting to protect the rights—

I move, That the question be now put.

It is indeed a pleasure to rise to speak to this Government Communications Security Bureau and Related Legislation Amendment Bill. It is my first opportunity to speak at all on this bill. The piece that I am speaking to is Part 2, and I am glad that I have the opportunity to speak to this part because it really does cut to the core of the issue about trust. My colleague Su’a William Sio has pointed out that if this is the best part of the bill and the other parts—Part 1 and Part 3—are the worst, that is not a good way to make law. But I wish to focus on Part 2.

We are told in the explanatory note of the bill: “The purposes of the Bill are to—provide for a clearly formulated and consistent statutory framework governing the activities of the Government Communications Security Bureau …”. The second of the three purposes is to “update that framework to respond to the changing security environment (particularly in relation to cybersecurity and information security), and to changes in the public law environment since the GCSB Act was passed in 2003 …”, and the third is to “enhance the external oversight mechanisms that apply to the intelligence agencies by strengthening the Office of the Inspector-General of Intelligence and Security and by improving the operation of the Intelligence and Security Committee.”

All of these things go to trust and to how the public can be assured that this is enhanced. When we talk about enhancing the external oversight mechanisms, we are talking about not only having a proper oversight but also being seen to have a proper oversight. In some senses they are one and the same thing because that role must be performed by people whom New Zealanders trust. It is likely that New Zealanders will trust this agency and these persons only when they understand what has gone wrong in the past and what could go wrong in the future.

Were it not a serious matter, we would call it a comedy of errors in relation to our spy agencies in recent months. The Labour Party absolutely supports the best possible security arrangements and the best possible guarantees that New Zealanders’ interests—economic, personal, and otherwise—are being protected, but it does that wanting also to know that the best possible guarantees are being given to New Zealanders that the powers of our intelligence agencies are not being exercised in poor ways, misused, or are exposing people in ways that are inappropriate.

That brings me to the Supplementary Order Paper 305 in name of David Shearer, the leader of the Labour Party. David Shearer has lodged Supplementary Order Paper 305, which seeks to have an investigation into the way that the agencies are run. His amendment to clause 25 states that “Within 1 month of the commencement of this Part,”—were the bill to pass—“the Minister must determine, with the agreement of the leaders of each political party for the time being recognised for parliamentary purposes under the Standing Orders …” and so on and so forth—

💬 Grant Robertson: Not Peter Dunne.

Not Peter Dunne, my colleague says. It means that a series of agreed leaders around Parliament, who can then represent the interests of different parts of society, will meet and determine who should be on an inquiry. The leaders will establish a terms of reference for an independent inquiry into the purposes and functions of New Zealand’s intelligence agencies and they will set up the membership for that inquiry.

This is something that is very difficult to disagree with, I think, on a logical basis. Having a good look at the many things that have gone wrong in the past months seems like a very sensible idea, not only to this side of the House but to many New Zealanders. I want to put on record that I noted when I was out doorknocking a couple of weeks ago that mainstream New Zealanders, New Zealanders whom I would not necessarily have expected to be concerned about our spy agencies, are concerned. I spoke to one man, a mechanic perhaps of a similar age to the Chair—a young man still, but probably older and potentially wiser than myself. This man was very concerned about the oversight of these agencies and whether they were interfering with ordinary folks’ rights in New Zealand.

He was also concerned that his children are on the internet and so forth. Today many of our conversations happen on the internet. We now have those conversations that we once had in private over the internet. We do not expect—

I move, That the question be now put.

I would like to start my talk on Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill around trust as well and, to start with, the Prime Minister’s selection of his mate as the head of the Government Communications Security Bureau (GCSB). I just need to keep reflecting on that as we go through. We also reflect on the 80-plus people who were illegally spied on. Have we got trust? We reflect on the Waihopai “Five Eyes” institution in my neighbourhood, which we know has been spying in a very broad way and doing bulk information surveillance. Then we have got the Henry inquiry. So we need to really think about trust as we look at Part 3, because the inspector-general—

The CHAIRPERSON (Eric Roy): Order! We are on Part 2.

Part 2, sorry, yes—Part 2. In relation to the Inspector-General of Intelligence and Security and whatever capacity is given to the inspector-general through Supplementary Order Papers, because there was a limited capacity to start with, what capacity is there for depth of oversight? How much can they actually drill down into those issues of trust that I have just raised? Clause 32(3) sets out the persons whom the inspector-general can consult with: “(a) the Controller and Auditor-General: (b) an Ombudsman: (c) the Privacy Commissioner: (d) a Human Rights Commissioner: (e) the Independent Police Conduct Authority.” These persons, in a way, should more likely be a mandatory part of a trustworthy oversight body, not persons who may be consulted with. If we go on to the advisory panel—and remember that is an advisory panel—who does the make-up of that? It is done by the Governor-General on the recommendation of the Prime Minister. The Prime Minister at the moment really is not the subject of a high level of trust by the community.

We have heard the discussions about the number of people who have protested, and the level of concern expressed by the Law Society, by Dame Anne Salmond, and it goes on—the Privacy Commissioner and others. They were concerned about the way this bill has been brought to Parliament. The trouble with the fact that there are so many Supplementary Order Papers—not the ones from the Opposition that are trying to balance up the ones from the Government—meant that those people could not actually comment as well as they could or ideally would, in terms of the function of the advisory panel and the make-up of oversight.

There have as well been a number of very recent publications in the media from various interested people with some expertise in this area. One was from Dr Damien Rogers, a former senior adviser to the GCSB. He also warned about this sort of make-up, who the reporting should be to, and whatever, and suggested that maybe it should not be the Prime Minister; it should be the Minister of Defence. The Green Party has considered at times and wondered whether maybe the police would be a better body. But that sort of oversight or that consideration by the community has not really had its opportunity.

Another publication that came out a couple of days ago was from the United Nations Secretary-General, Ban Ki-moon, who was meeting with a group of South American foreign Ministers who voiced their concern to the United Nations chief about reported large-scale surveillance programmes. Mr Ban himself noted that the UN human rights mechanisms have pointed to important rights and privacy issues at stake in connection with surveillance. Will our oversight group, the inspector-general and his cohorts—or her cohorts—be able to give the level and depth of oversight that those same people were concerned about? I, for one, have serious doubts.

Austin Forbes QC, convenor of the New Zealand Law Society, was also concerned about how oversight would go, and also about the lack of opportunity to drill down—

I move, That the question be now put.