Government Communications Security Bureau and Related Legislation Amendment Bill

This part proposes a number of amendments to the Intelligence and Security Committee Act 1996, the long title of which provides that it is an Act to increase the level of oversight and review of the intelligence and security agencies by establishing the committee. The functions of this committee are modelled on the terms of reference for select committees. The bill proposes a number of additional functions: first, a function of considering and discussing with the inspector-general the annual report, which provides a formal link between the two oversight bodies. Importantly, Mr Dunne’s Supplementary Order Paper 308 will also add that the annual financial review of the intelligence agencies is to be held in public, subject to restrictions relating to classified information.

New section 7A in clause 39 sets out the membership of the committee. Members can read it for themselves. Basically, it is the Prime Minister, the Leader of the Opposition, and a couple of other members of the House of Representatives nominated by the Prime Minister or nominated by the Leader of the Opposition. There is actually a practical problem in the way this is structured, in trying to schedule meetings. Some proposals are set out in Part 3 to improve the composition of the committee, so that other members may sit if the Prime Minister is unavailable. The proposals set out in clause 39 directly address issues of convenience and efficiency. Importantly, the Prime Minister will have to step aside from the chair when the financial performance of an agency takes place if he or she is the Minister responsible for the portfolio. The Prime Minister will also be able to be substituted by the Deputy Prime Minister or the Attorney-General—yours truly—and the Leader of the Opposition by his or her deputy, which would be a grand opportunity for Mr Robertson while he still holds that position, before any leadership purge takes place.

💬 Chris Hipkins: Just can’t help himself. He just can’t help himself. “Mr Nasty”. “Mr Nasty”.

What that does is provide greater flexibility in holding meetings. No, the nasty person in the House is the poor old member for Rongotai, who seems to be going through a very bad patch—maybe it is because she sees—

💬 Hon Phil Goff: She’s thrashed the backside off that member in a number of elections.

Well, of course she would, because it is possibly Labour’s strongest seat. She has never lost the seat. Another strong seat, of course, was the seat of Roskill, which Mr Goff lost to Gilbert Myles—the most embarrassing political defeat in history. Mr Myles beat Mr Goff—a deeply embarrassing situation for Mr Goff—not surprisingly, after his 6 years as a very low-grade Minister of the Crown in the Lange Government.

Anyway, let me come to—[Interruption] Oh, they have woken up out of their slumber. Let me come to Mr Dunne’s Supplementary Order Paper 308, which also raises a number of very important matters, and concerns an independent review. What this does is create an opportunity for a periodic review of the legislation at very regular intervals. It is something like section 202 of the Evidence Act 2006. There will be a review, which has to be commenced before 30 June 2015, and afterwards held at intervals of not shorter than 5 years and not longer than 7 years. So there will be a regular review, and that will be an extremely important provision. There are detailed provisions set out as to the appointment of reviewers, who the reviewers can be, the provision of information to them, and the report of the reviewers. These are very important provisions to increase oversight. We have heard a lot of things from Labour members about the need for a review, but we are not talking about one review; we are talking about instituting a regime of periodic reviews. If they had any integrity, they would be supporting this part.

I rise to speak on Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill, but, as the Minister in the chair, the Attorney-General, has introduced the question of electoral defeat, I thought we could perhaps traverse the Minister’s career, which has been an illustrious one of defeat, beginning, I think, with losing the Mana seat to Graham Kelly—would that be right, or was it Winnie Laban? It was Winnie Laban.

💬 Hon Christopher Finlayson: Dear old Winnie.

Well, it was Winnie Laban. I had been kind of hoping it was Graham Kelly, because I do see a future for the Minister in the chair as the High Commissioner to Ottawa, which is where Graham Kelly ended up.

💬 Hon Phil Goff: I would have thought Siberia.

💬 Chris Hipkins: Mongolia.

That is right, there are a number of places that he could be sent, and that would be possible. But I can tell you that out in Rongotai they are looking for the Attorney-General, because they cannot find him. Here in the Labour caucus, we all just wish and hope that Mr Finlayson will run against us in the next election. That is what we all wish. If he stumped up in Wellington Central—he has lived in the seat for years and years, but is too scared to run in Wellington Central.

The CHAIRPERSON (Eric Roy): Order!

I am merely responding to the Minister’s comments.

The CHAIRPERSON (Eric Roy): I understand that. It is time for the member to debate Part 3.

Very good. In Part 3—and it would have been nice if the Minister had stuck to it as well—we are debating the question of the amendments to the Intelligence and Security Committee Act 1996. On this part of the bill, it would be fair to say—unlike Part 2, because the Opposition could see in Part 2 the improvements that the Government had attempted to make; they did not go far enough, but we could see them—the effort does not even get there. It is a token effort to do something about an Intelligence and Security Committee that has not, under the leadership of John Key, provided the kind of oversight that we believe should be in place.

We also believe that, by legislation, this is exactly the kind of legislation that should be part of an overall review of our intelligence agencies. In 1996, when this legislation was brought in, this was deemed to be the appropriate structure for the committee. Some minor tinkering takes place in Part 3, but the basic structure of the committee remains, and the basic problems with the committee remain.

That was never better exemplified than when the committee was hearing this bill. The leader of the Labour Party, David Shearer, made the not-unreasonable suggestion that some of the agencies, for which now under this bill it will be possible and legal for the Government Communications Security Bureau (GCSB) to assist, might like to come to the committee and describe to the committee the kinds of actions and activities that the GCSB would be working with them on, how it worked with them, and what the relationships would be. That is at the heart of Part 1, which has already been passed by the Committee today. That is what David Shearer sought for the committee to do. John Key ruled that out. He ruled that out straight away, as the chair of the committee. Dr Norman and David Shearer, as the two Opposition members on the committee, were trying to have the committee undertake a proper analysis of this bill. They were not able to do that, because the Prime Minister in the chair, assisted by Mr Ryall and John Banks, were able to stop that from happening. That, to us, highlights the shortcomings of the Intelligence and Security Committee that are not corrected by the amendments that stand in Part 3.

We can look around the world and find other examples of the way intelligence and security committees are composed and the way that they go about their business, which we believe should be seriously considered in terms of the New Zealand model, and should be part of Part 3 today. We need only look across the Ditch where, in Australia, they had two large-scale reviews of their intelligence agencies. They did that because the Australian agencies were struggling in a number of areas. What that led to was a parliamentary oversight that was significantly enhanced.

I want to pick up one particular aspect of the Australian Parliamentary Joint Committee on Intelligence and Security, and that is that Ministers, the Speaker, and the President of the Senate are not able to be members of that committee. That is a very significant difference from the Intelligence and Security Committee, which we are looking at today. It makes it Parliament’s committee. It is quite clear that this is a statutory committee that we are amending here in Part 3 of the legislation. It is a statutory committee. It is separate from the select committee process. But making those changes that the Australians did, to not have the Ministers in place in those roles, is a very significant change. I am not yet ready to say that that is absolutely what I think should happen in New Zealand, but I do believe that it should be on the table in any review. As I said in my call on Part 2 earlier, I personally believe that we do need the Inspector-General of Intelligence and Security to be an Officer of Parliament, and we certainly need to enhance the Intelligence and Security Committee in terms of its role as representative of this Parliament. So the Australians have that matter.

I will return shortly to the question of the functions of the committee, which are being amended in clause 38. I want to reference one other country’s intelligence and security committee arrangements, and that is Norway’s, because that is another step again from where the Australians are. The Australians are saying no Ministers and excluding the President of the Senate as well. What the Norwegians have done is create a Parliamentary Intelligence Oversight Committee that actually includes non-politicians. It is actually a committee that—and this is exactly what the Act says—“should represent a wide range of experience, both political and from other walks of life.” It actually says that sitting members of the Parliament cannot sit on the committee. That is another step again from the question of whether or not you would have non-Ministers on it.

These are exactly the options that should be on the table in a review, which is contained in Supplementary Order Paper 305 from David Shearer on this part as well. We need to look at a wider range of options. It may be possible to put the two together to have a parliamentary oversight committee but also have one that has the general public having some oversight. The Norwegian example is one where they can investigate a number of matters. They are restricted—of course they are restricted—in terms of the information that they can look at, but when you look at the purposes of the Norwegian committee, the very first one of those is to discover and prevent unjust treatment of any person. Surely that is the kind of oversight we would want. We would want to know that there were people looking over the actions of our intelligence agencies with a mind to avoiding unjust treatment. Imagine if we had had that before the Kim Dotcom saga or before we found out about the 88 illegal spying cases. The Norwegians have a very open model. Again, I am not saying that that is necessarily the exact answer, but when we look at what the Government is putting on the table in Part 3, it is woefully weak in improving the way in which the Intelligence and Security Committee works.

When we return to the functions of the committee, which are contained under clause 38 here—look, yes, it is an excellent idea to have the Inspector-General of Intelligence and Security discuss his or her report, but when the committee is fundamentally set up the way it is, it is not going to be able to inquire into all of the matters that it should. Even the Australians have understood that. They slightly expanded the functions of their committee to make sure that they could review any matter in relation to the agencies that was referred to it. That is a wider brief than what we have in New Zealand, and, obviously, when the Ministers are not in charge of the committee, that could lead to some quite substantive investigations.

We do believe that the Intelligence and Security Committee has an important part in establishing that framework of trust that New Zealanders need to rebuild in our intelligence agencies. Where we are today is that our trust and faith in our intelligence agencies are at their lowest possible level. That falls at the feet of John Key and the National Government, but it is also contributed to by the structures that are around our intelligence agencies.

We have not had a review of our intelligence agencies since 1976. That is far too long, and too much has changed in the world for us to complacently sit here and, in Part 3, tinker about with the Intelligence and Security Committee structure, and say that that is enough. The world has changed. The digital era has fundamentally changed the way we communicate with one another and, in turn, has fundamentally changed the way that security and intelligence agencies work. The Government must recognise that, have a review, and look at the widest possible range of options for oversight. That includes a more independent inspector-general, and it includes relooking at the way in which Parliament does its job on behalf of New Zealanders to look out for these intelligence and security agencies.

The amendments in Part 3 are not even window dressing. They are just the most minor of tinkering to try to make the Government look like it is doing something to make the Intelligence and Security Committee a stronger body. The bill does not do that. My colleague Mr Goff, I am sure, will take a call shortly—and I will leave him to talk about this in detail—and I am sure that one of the things that he will raise is the question of who should chair the Intelligence and Security Committee, because there are some ideas out there that having a Government member as the chair of that committee effectively leads us to where we have ended up. New Zealanders need to re-establish trust.

I rise on behalf of the Green Party to speak to Part 3 of this bill, the Government Communications Security Bureau and Related Legislation Amendment Bill. Part 3 is in relation to the Intelligence and Security Committee. I endorse the comments of Mr Grant Robertson, who gave an excellent speech. I very much really appreciate the direction of the Labour Party policy on this particular matter, after the 2003 legislation, which the Greens did not support.

Anyway, Part 3 of this bill is about the Intelligence and Security Committee. Think about it—this is meant to be a committee that provides oversight over the agencies. The Minister responsible for the agencies chairs the committee, so we have already got a pretty big problem of conflict of interest in terms of oversight, and, unfortunately, this bill does not fix that. The Intelligence and Security Committee has five members. It has the Minister who chairs it and the Leader of the Opposition, and the Leader of the Opposition nominates one person, and the Minister nominates two.

I have been fortunate enough to be nominated by Mr Goff when he was Leader of the Opposition—thank you, Mr Goff—to be on the committee, and then I was nominated by David Shearer to be on the committee. Having been on the committee for some time now, I am well aware of its extreme limitations and the limitations in its ability to provide the kind of oversight that I think New Zealanders would expect a committee of parliamentarians to provide. I think it is most unfortunate that we do not have the kind of oversight of the Government Communications Security Bureau (GCSB) and the SIS that I think most New Zealanders would like us to have. Essentially, that is because the structure of the committee does not provide it. You basically have the Minister responsible, who has an enormous role within the GCSB and the SIS. It is not a stand-apart role for the Minister responsible for the GCSB; it is very much in control of what the GCSB does. That Minister also controls the Intelligence and Security Committee, so it is very difficult to get any kind of real independent oversight in that situation when the Minister controls both the oversight committee and the agency itself.

I thought it was interesting that the last review done of these agencies was in the first calendar year of the Muldoon Government, because a lot of what has been going on lately certainly reminds me of Muldoonism, so it is a most interesting coincidence. I think it is also important to understand that the Intelligence and Security Committee is very highly constrained in what it can do. It has very few powers to inquire into what these agencies are doing. Even if the Prime Minister were of a mind to allow the committee to inquire into the operations of the GCSB and the SIS, the committee itself has enormous constraints on what it can inquire into.

A normal, regular select committee has a lot of power to require departments and so forth, and officials, to appear in front of it and to inquire into their activities. The Intelligence and Security Committee, I am afraid, has very few of those kinds of powers in order to inquire into what these agencies are doing, particularly in relation to operational matters.

Other jurisdictions, as Mr Robertson has pointed out, have given their oversight committees much greater powers. As well as their having independent people on the committee in order to make sure the committee is not controlled by the Minister, who is also controlling the agencies that the committee is supposed to providing oversight of, those jurisdictions also give their oversight committees much greater powers. The American committees, for example, under the US system, have the power of subpoena. If you are a spy working in an agency, and you are working unlawfully—and, of course, we have now found the GCSB has been operating unlawfully on over 80 occasions—your fear is that the oversight committees could subpoena you to appear in front of them and you could be forced to give testimony that would effectively incriminate you for operating in an unlawful manner.

The Intelligence and Security Committee in New Zealand has no such powers. We cannot demand that spies appear in front of us. We cannot demand that they testify and tell us about what they have been doing and about their unlawful activities. The GCSB can simply say: “No, we don’t wish to discuss that matter.”, if we were to ask about it, and that would be the end of the matter. We cannot make them tell us things. If there is any question about whether we might be able to make them tell us things, the Prime Minister chairing the committee can prevent any testimony and can prevent any attempt to drag officials before the committee. So there is no threat. The committee has no power. It has no stick. It cannot force people to do anything, so why on earth would an agency that has been operating unlawfully on many dozens and dozens of occasions have anything to fear from this committee? Unfortunately the changes that the Government is proposing do not change any of that at all.

What I have done in my Supplementary Order Paper to this bill before the Committee is propose to remove some of those constraints. My Supplementary Order Paper 313 is basically amending what the committee can do. It would give the committee much greater powers to inquire into what the agencies are doing—the very agencies that the committee is supposed to be providing oversight of. I think that that is quite an important amendment to make. If we do not give the committee those kinds of powers, ordinary New Zealanders will look at this committee and think: “Well, you know, OK, we don’t know what the spies do, but there are these elected people up there who do know what the spies are doing.” Ordinary people would look at the committee and think: “Well, there are these people on the Intelligence and Security Committee who do know what the spies are doing, so at least someone is watching the spies.” The problem is that if the Intelligence and Security Committee does not have the powers to actually investigate what these agencies are doing, then, I am afraid, ordinary New Zealanders are being misled if they think that the Intelligence and Security Committee has the powers to provide a proper oversight function. It simply does not. It does not have the powers. It is dominated by the Minister who is responsible for the agency. It simply cannot do the functions that, basically, I think, all of us expect it to do.

I would also like to talk about the review process that has been proposed here by Mr Dunne. I do not wish to impugn Mr Dunne’s motives, because I think that he genuinely does want to put a review process into this legislation. However, I think it is too confusing for people following the debate to think that the review process that Mr Dunne is proposing is anything like the kind of review process that the Labour Party and the Green Party have been proposing. They are entirely different beasts. This is not the kind of review that would look at the agencies as a whole, why they exist, what they are there for, what kind of structure they should have, and what their purpose is. It is a much narrower review, and there is absolutely no requirement for the review to be concluded—for example, its recommendations to be put in place.

By analogy, I would refer people to the MMP review if we are to think about what kind of review we have here. After the referendum on MMP, when New Zealanders voted to keep MMP, there was a promise by the Government that there would be a review, and there was a review by the Electoral Commission, which is an independent agency. It came up with a series of significant recommendations to amend the system. However, the Government of the day decided, purely for partisan political reasons, to implement none of them. So it is all very well to have a review within this bill and within this legislation, but just having a review does not guarantee that any of the recommendations will actually be implemented. It does not guarantee the kind of depth the review might require, particularly in light of the malfeasance and illegal activities of these organisations. They clearly need a pretty serious review, when they have been operating illegally on dozens and dozens of occasions. It does not guarantee the kind of depth the review needs, and there is no guarantee that it will reach conclusions and that those conclusions will be implemented, and, of course, the review will be appointed by the Prime Minister. It will not be an independent review; it will be undertaken by people appointed by the Prime Minister.

So although I certainly will be supporting Mr Dunne’s proposals around the review—good on Mr Dunne for getting them—none the less it does not change the fundamental problems of this bill. Mr Dunne still has an opportunity to change his vote on this bill, and I would strongly urge him to do so. I would also urge the ACT Party to do the same. It is completely anathema to the very founding principles of the ACT Party that the ACT Party is voting for a bill that significantly increases State powers. It does not significantly increase the power of oversight within the Intelligence and Security Committee, within Part 3. So how can the ACT Party, a party that is supposedly based on a principles of liberty and freedom, be voting for a bill that in Part 1 dramatically increases the powers of State surveillance, but in Part 3 provides virtually no increase in terms of the ability of the elected representatives on the Intelligence and Security Committee to actually provide better oversight of this big increase in powers? How can that be consistent with a party that says it is built on the principles of freedom and liberty—that is, how can it vote for a big increase in State surveillance but not match that by voting for a big increase in the ability of the democratically elected representatives to provide oversight of that increase in the surveillance powers in Part 3, which is the part that we are discussing at the moment? That is why I think anyone who believes in freedom should vote against this bill.

I move, That the question be now put.

It is deeply ironic, when we are talking about a section of the Government Communications Security Bureau and Related Legislation Amendment Bill where we need a non-partisan approach to scrutinising the activities of our intelligence agencies, that the Minister in the chair, Chris Finlayson, should have been so partisan. It is true, Mr Finlayson, that the National Party candidate Gilbert Myles beat me. I beat him 3 years later, and the last time he was heard of he was appearing before the court for perverting the course of justice. I have won 11 times and I have lost once. The Minister in the chair has lost three times. You would think that that would be a humbling experience, but the arrogance of the Minister shows no sign that he has learnt at all from being beaten on three occasions, each time by a woman member of Parliament.

Now I want to come back to the bill. The Minister in the chair said that this bill is about making a group that is like a select committee. The Intelligence and Security Committee has absolutely nothing in common with a select committee. It meets rarely and—

I am sorry to interrupt the member, but the time has come for me to report progress.

Progress to be reported presently.

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.

Report adopted.

The House adjourned at 5.56 p.m.