Government Communications Security Bureau and Related Legislation Amendment Bill

I want to talk to Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill. Part 3 of the bill deals with the Intelligence and Security Committee Act. What this part of the bill should be about is providing proper scrutiny over an agency, the Government Communications Security Bureau (GCSB), which in this legislation is being given more power—considerably more power—and, indeed, power to actually intercept the emails of New Zealanders on cyber-security, even though the Prime Minister denies that, but will not let the House put explicit safeguards in place to ensure that that spying does not happen.

💬 Hon Anne Tolley: Just not telling the truth.

The member has been challenged to nominate the clause in the bill that explicitly stops the Prime Minister allowing the GCSB to spy on the emails of New Zealanders in relation to cyber-security. It is not there. The Prime Minister knows it is not there, and, in fact, the Prime Minister said to the papers on the weekend that he would say something in the third reading of the bill and that would fix it. He does not understand how this House works and neither does that member.

💬 Hon Anne Tolley: I raise a point of order, Mr Chairperson. We are on Part 3, I think, which is a very narrow part and has nothing whatsoever to do with the third reading.

Speaking to the point of order, the member has a cheek in raising that point of order, because I was responding to the interjection where she sought to interrupt my speech, which was on Part 3 of the bill, and I paused for a moment to make a lie of what she was telling the Committee.

The CHAIRPERSON (H V Ross Robertson): Order! Order! You were going so well, Mr Goff, and then you used a word that we cannot use in this Chamber. When Ministers interject, that invites further comment. But Part 3 is debate on clauses 37 to 40.

As I was saying, this is the part that should give real powers to the Intelligence and Security Committee to exercise oversight of the GCSB and the Minister responsible for the GCSB. What this part does not address is the fundamental conflict of interest that you have in having the Minister in charge of the GCSB not simply on the committee—that would be unusual in any other select committee—but actually chairing the committee. So the Minister who is supposed to be the subject of scrutiny in his oversight of the GCSB, which has been very poor on his track record, is actually chairing that committee and ensuring that that oversight does not take place.

The Attorney-General had the effrontery in his speech on this part of the bill to say that the Intelligence and Security Committee was modelled on a select committee. It is nothing like a select committee, and the Attorney-General understands that. The first thing a select committee would do when hearing a piece of legislation like this is it would call in the department that the legislation was about. Did the Intelligence and Security Committee call in the GCSB to question the GCSB about legislation that pertained to it and its activity? No. Why not? Because the Prime Minister is the Minister in charge of the GCSB, and he forbade the committee to have the GCSB come in to say how its powers were proposed to be expanded under this legislation, what its actual competence and effectiveness in exercising its current powers were, and whether there was sufficient oversight over the select committee.

I have been on this committee. This committee meets rarely—at best, a couple of times a year. This committee, when it meets, meets briefly. The Prime Minister chairs it and shows his absolute boredom with the proceedings very obviously, and sends through his body language a signal to the officials who are appearing before it that they had better not say anything about the committee. The officials get the clear message from the Minister that anything that they say that could lead to other questions by the Opposition would not be appreciated by their Minister. It is a total farce. It is a total facade to say, as this part of the bill says, that we will fix that by taking the Prime Minister out of the chair for part of the proceedings if it is about the financial review. Who is the Government going to replace him with? It is going to replace him with the Attorney-General or the Deputy Prime Minister. I have real confidence in the independence of those members to chair the committee in a way that gets the truth out and embarrasses the Prime Minister! Yeah, right! It is a Tui billboard, absolutely. That proposal is paper-thin. It has not even the pretence of producing oversight and accountability.

If the committee was to work properly, then maybe it should take its functions from the Regulations Review Committee. As you are aware, Mr Chairman, the Regulations Review Committee, by tradition, is chaired by a member of the Opposition. The member of the Opposition listens to the official advice and asks the hard questions. So why not have a member of the Opposition—in fact, the Leader of the Opposition, who is actually the Prime Minister in waiting—chair that committee? Then you might have some grounds for public confidence that oversight was taking place and that accountability was being enforced.

You know, I have looked at a range of other Western democracies around the world that have committees like the Intelligence and Security Committee. One point that both the Australian committee and the United Kingdom committee make absolutely clear in their rules is that no Minister should sit on the committee overviewing the intelligence agencies. What have we got from the National Government? We have got three Ministers on the committee. In the United Kingdom or Australia, not one of those Ministers would be eligible to sit on it. If you look at the United States, the President exercises executive authority over the National Security Agency. He is scrutinised by two committees—one in the House of Representatives, one in the Senate—both separated constitutionally from the executive wing and often chaired by a member of a party that is not the party of the President. If you look at the Norwegian example, it goes a step further. Its oversight committee actually does not even have members of Parliament on it.

But the Attorney-General brings this fraudulent piece of legislation in Part 3 to the Committee and says: “Trust us, we have strengthened the oversight.” He has done no such thing. He has done no such thing. New Zealanders—40 percent in the TV3 poll said they do not trust the GCSB, and 89 percent said last night they do not support this legislation—will not be fooled for a moment by this legislation. This legislation does not give oversight. It is farcical in the pretence that it makes that it might do so.

The fact is that both the Privacy Commissioner and the Chief Human Rights Commissioner have made it clear in their submissions to the committee that the oversight provided by the Government is inadequate. Both of those people are appointed by the Government and are appointed to protect the rights of New Zealanders and their reasonable expectation of privacy. Marie Shroff, who is the Privacy Commissioner, was Secretary of the Cabinet for 10 years. She understands about the workings of Government. She says we should not go ahead with this bill, that it needs more work, and that there is not much oversight. The Government has changed the membership of the Human Rights Commission completely to put its own people in. But even its own people say that these measures of oversight do not work, that these measures of oversight are not sufficient, and that the Government is giving enormous powers to the GCSB to intrude into the private lives of New Zealanders.

We do not have accountability. The media cannot report because it does not have access to the information. There are not parliamentary processes. The Official Information Act does not effectively apply to what is happening in the GCSB. The Privacy Commissioner, the Human Rights Commission, and the Law Society all say that we should go back to the drawing board. The protections are not sufficient. Yes, we need a security—

I move, That the question be now put.

I rise on behalf of the Green Party to speak on Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill. This is an important part because it deals with the question of accountability and oversight of the Intelligence and Security Committee. I want to speak to my amendment on Supplementary Order Paper 313. I have moved this amendment in order, basically, to give the committee greater ability to inquire into these agencies. Currently, the committee has a lot of constraints on it. If you think about a regular select committee, if it is to be able to do its job, it needs to be able to inquire into an agency to ensure that it is working.

Currently, under the Intelligence and Security Committee Act, there are all these constraints—for example, the functions of the committee do not include inquiring into any matter that is operationally sensitive. What this means is that, basically, the Minister can say that this is something that is operationally sensitive, so you are not allowed to look at it. You might think that is OK, and you would not want the secrets to come out. But if the Intelligence and Security Committee—operating, essentially, in secret, because it meets in a closed session—cannot inquire into the operations of the Government Communications Security Bureau (GCSB) and the SIS, then nobody else from the democratically elected Parliament, outside of the Prime Minister, can inquire into the operations.

This is particularly important for the issue that was raised in Parliament today, which was around whether the GCSB is in receipt of money from the United States Government. When I have asked written questions of the Minister responsible for the GCSB as to whether the GCSB has received money from the US Government, and particularly the National Security Agency, the Prime Minister has refused to answer those questions on the basis that these are operational matters and he does not comment on operational matters. We know from the United Kingdom that the equivalent of the GCSB, the Government Communications Headquarters, has received something in the order of £100 million from the US Government, in order to do the work of the US spy agencies in Britain. We can only assume that the New Zealand spy agency, the GCSB, is also in receipt of money from the US Government. We cannot prove it. We do not have the evidence. We do not have Snowden’s leaks to show that it has been getting money from the US Government. But when we have asked questions about it, the Prime Minister has blocked us on the basis that it is operationally sensitive.

That is why my amendment on this part—which basically gives the Intelligence and Security Committee the ability to ask questions about things that might be operationally sensitive—is important. If we cannot even ask whether the GCSB has been getting money from the US Government—if that simple question is blocked by the Prime Minister on the basis that it is operationally sensitive—then we cannot ask some basic questions about the GCSB. If the GCSB is in receipt of many millions of dollars of US Government money—and we cannot prove whether it is or it is not, but clearly the equivalent agency in the United Kingdom is, so why would not the equivalent in New Zealand also be receiving US Government money?

I mean, there is a logic to this thing—that the National Security Agency is giving out large amounts of money to its Five Eyes partners. It has given a whole bunch of money to the UK. It makes sense that it has also given a whole bunch of money to the GCSB in New Zealand. And if we cannot ask those questions because they are blocked by the Prime Minister on the basis that they are operational matters, then it becomes incredibly difficult for the Intelligence and Security Committee, let alone Parliament as a whole, to do its job of keeping the GCSB accountable. That is why I have moved an amendment on Supplementary Order Paper 313 to basically give more power to the Intelligence and Security Committee to ask these questions.

Obviously, I cannot talk about what happens inside meetings of the Intelligence and Security Committee, because under the statute under which it operates it is an offence to reveal anything that happens inside the meetings, even though I have been on the committee for 5 years now. But, essentially, if you look at the statutes under which we operate, the GCSB can always block us asking questions, on the basis of operational sensitivity. That is why it is very important that we remove this section from the Intelligence and Security Committee Act, so that we can ask those questions.

We cannot even get into the basic financial situation of the GCSB. You might think that the Intelligence and Security Committee cannot ask questions about whom the GCSB is bugging, but surely the committee should be able to ask questions about the financial situation of the GCSB. But we cannot even ask questions about the financial situation of the GCSB—for example, whether it is in receipt of large amounts of money from the US Government—because when we ask those questions, as I did in my written questions to the Prime Minister, he blocked the answers to those questions on the basis that they concerned an operational matter. It seems to me that the question of whether the GCSB is in receipt of large amounts of money is an issue of financial review as much as anything else. How are we meant to operate the powers of financial review over the GCSB and the SIS if we cannot even ask questions as to where their money is coming from—that is, whether it is coming from offshore or whether it is coming from the New Zealand Government? We are not allowed to ask those questions.

Under some of the improvements of oversight—and there have been some improvements, some minor improvements, and I have acknowledged those previously—one of those minor improvements is that the financial review sessions are meant to operate in public. This is an amendment that Peter Dunne managed to get up, and it is a small improvement. But you realise how small the improvement is when in the financial review discussion of the GCSB, which is meant to be happening in these public sessions, we will not be allowed to ask—or at least we will not be able to have answered—some basic, fundamental questions about where the money comes from, even under the marginally expanded financial review powers that Mr Dunne has got put into this bill, because we cannot ask the GCSB the question of where the money comes from and where its income comes from.

You might think that it is just an act of generosity by the US Government that it gives the GCSB a whole bunch of money, and it is an act of generosity that it has given £100 million to the Government Communications Headquarters in the United Kingdom. But if the GCSB is to be truly accountable to the New Zealand people, this is, in fact, a critical issue. There is a saying, is there not? He who pays the piper calls the tune. That is one of the sayings. When we—that is, the taxpayers and people of New Zealand—are the ones who pay the money, then it gives us some control over the purse strings of the GCSB, because we are able to say “No, we are not going to give you money for that.”, if we do not like what “that” is, or “We will give you money for ‘x’.”, if we do like what “x” is.

The problem is that if the US Government is a major funder of the GCSB—and, based on the evidence from the United Kingdom and the Snowden papers, it may well be true. Who knows? The Prime Minister will not answer questions on it. If the US Government is a significant funder of the GCSB, then we lose that level of control over the GCSB’s functionality, because if it wants to install a particular system that the New Zealand Government and taxpayers simply do not want to pay for, then it can get funding from offshore to install those surveillance systems.

I give you that on first hearing this may sound extraordinary. When I first heard that the National Security Agency had been funding the Government Communications Headquarters in the UK, I could not believe it. It was only when it was confirmed by the papers that Edward Snowden released, which obviously revealed the true extent of what is really going on with the surveillance state, that we were able to establish that these large amounts of money were flowing from the National Security Agency in the United States into the other Five Eyes agencies, and presumably into the GCSB. That is why this amendment, which might seem relatively small and perhaps not relevant to issues of financial review, actually is entirely relevant to the financial review function. We cannot perform even the financial review function of the GCSB properly, because the Prime Minister is using the defence of operational matters as a reason not to answer basic questions—for example, the question of whether the GCSB is receiving money from offshore.

There are a number of other issues that are related to this, and I think Mr Goff has done a good job in covering those. They include the fact that the Intelligence and Security Committee is dominated by Government Ministers, when in other jurisdictions Government Ministers cannot be on such an oversight committee; the fact that the committee has limited powers of inquiry and this is a significant restriction; and, of course, the fact that in other jurisdictions members of Parliament are not on the committee, which gives it much more independence. All of these things could have been dramatically improved in the way that we dealt with this, had we gone through a proper process of holding an inquiry into these agencies, so we could actually start from a sensible starting point of asking what kinds of agencies we want and what kind of oversight they should have. Then the law would follow from that, including the oversight of the Intelligence and Security Committee, which we are dealing with under this part. The law would flow from such an inquiry, rather than our dealing with this bill in front of us, which the Prime Minister and the Government are very keen to push through this Parliament.

I would say to the National members of the Committee that you should support this amendment to the bill. It is a constructive amendment to the bill, so that we can do proper financial reviews of the GCSB. Currently we cannot, because the Prime Minister will not answer questions on them.

I move, That the question be now put.

Thank you for this, my first call on this third part of the Government Communications Security Bureau and Related Legislation Amendment Bill. Can I begin by referring to section 6 of the Intelligence and Security Committee Act. This is the Act that is amended by clause 38 of the bill. The Prime Minister has been telling members of the New Zealand public that they should not be too concerned about changes to the Government Communications Security Bureau (GCSB) legislation because the oversight powers of the Intelligence and Security Committee are being changed and expanded. I want to explain why that is, in practice, no solace at all. It is because this legislation does not change one iota the limits to the jurisdiction of the Intelligence and Security Committee.

I am going to read from section 6 of the Intelligence and Security Committee Act. It says: “The functions of the Committee are—(a) subject to subsection (2), to examine the policy, administration, and expenditure of each intelligence and security agency:”. So subject to subsection (2), the Intelligence and Security Committee can examine the policy and administration of the GCSB. But then you read subsection (2), and it specifically excludes from the functions of the committee the very thing that the Prime Minister suggests we should take solace from. Subsection (2) says: “The functions of the Committee do not include … (b) inquiring into any matter that is operationally sensitive …”, then that is defined by saying that operationally sensitive includes “any matter that relates to intelligence collection and production methods or sources of information;”. So there is absolutely no protection in the functions of the oversight committee—the Intelligence and Security Committee—into what the GCSB might be doing, whether it is looking at just metadata or whether it is looking at the content of emails, because the legislation of that—

💬 Hon Anne Tolley: It’s no different from the law that the Labour Government passed.

What is that?

💬 Hon Anne Tolley: It’s no different from the law that the Labour Government passed.

The difference is that we were not giving the GCSB the power to look at the content of New Zealanders’ emails.

💬 Hon Anne Tolley: Neither are we—not without a warrant.

You are—you are—and the Prime Minister is now saying that he is going to read something into the third reading debate that is meant to somehow limit the effects of the earlier parts of the law, which have already gone through the Committee stage. Then he says that we should take solace from the fact that the oversight committee’s powers are being extended. Well, they are not being extended in any material way in respect of their oversight function of what the GCSB does operationally, because subsection (2) of section 6 of the Intelligence and Security Committee Act says that the functions of the committee do not include “inquiring into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information;”.

I want the Minister in the chair, the Attorney-General, to take a call and tell me whether I am wrong, that somehow I have misread the Intelligence and Security Committee Act, and that there is a real oversight function of that committee that extends into looking at intelligence collection or production methods that are being used by the GCSB, because my reading of the subsection that I have just read out is that that is expressly put beyond the jurisdiction of the Intelligence and Security Committee. There is no way that the Prime Minister, even if he wanted to, could allow the Intelligence and Security Committee to have a look at whether the GCSB was going too far in its oversight of information systems, going so far as to look at emails, and whether it could look at them.

This should be contrasted with the protections that we have where other arms of the State do this sort of thing. There are occasions when the police want to have a look at the content of emails. They get a warrant. They have to go to an independent judge.

💬 Hon Anne Tolley: As it does under this bill. They have to get a warrant.

Under this bill, whether a warrant is granted or not remains ever secret. Under the—

I move, That the question be now put.

When I look around I see quite a few people calling, and I am going to call—this is hard. Oh, all right. I call the honourable member Jacinda Ardern.

Thank you, Mr Chair. That became quite the bidding war in the end. I just want to clarify that as we are debating Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill, there seems to be a fundamental lack of understanding on the Government benches that this overall bill extends the power of the Government Communications Security Bureau (GCSB) to, essentially, spy on New Zealanders, and, of course, that then extends to the oversight provisions that sit in Part 3. But, overall, that is a fundamental change to the way that the GCSB operates in New Zealand, and to have members on that side of the Chamber try to claim that that is not case seems absolutely absurd. This is an incredibly short part of this bill, but it is an incredibly important part, because New Zealanders are seeking reassurances around the oversight of the GCSB, which will hold this grand extension of powers. Unfortunately, these oversight provisions are grossly inadequate and, if anything, would add to the nervousness of New Zealanders. That was certainly the case, I think, at the public meeting last night, where these provisions were discussed at some length.

I think it is helpful if we perhaps delve into the differences that you might see in the way that the Intelligence and Security Committee operates versus the way that any other committee that exists within a parliamentary context operates, and the transparency—or the lack of it—that applies across these committees, because that is essentially what Part 3 deals to. Well, firstly, this provision sets out that the Prime Minister is able to relinquish the chairmanship of the committee when it discusses the performance of the agency. This is meant to be the first element that is meant to give us great comfort.

When we are looking at the performance of the GCSB, do not worry, because the Prime Minister, who is involved in the appointment process of the head of the GCSB and who is the Minister responsible for the GCSB, will relinquish the seat. Let us be clear. It would be the same if, for instance, we were to have Paula Bennett sitting as the chair of the Social Services Committee when it was about to review the Ministry of Social Development. It is an absolutely shameful suggestion to imply that that somehow gives us any sense of comfort that it will be a transparent examination, because it essentially examines the Minister’s own performance by the performance of their department.

But, do not worry, the Prime Minister will relinquish the chairmanship, and will hand the chair over to—whom? Well, potentially, the Attorney-General or the Deputy Prime Minister. To again extend the example to another committee, it is the equivalent of having Paula Bennett say: “Don’t worry, I won’t review my own department. I’ll get my associate to come in and review the department.” What comfort can we as New Zealanders take from that level of transparency? Absolutely none. That is why, again, I do not think that New Zealanders can take from that any sense of security that this grand, sweeping broadening of provisions will have at the very least the oversight that they deserve. However, it is our contention that they should not exist at all.

But then, what is the second provision that is meant to give us comfort? Well, the committee will be required to table its reports in the House and make them publicly available. The problem is that you know only what you know when you are a member of a select committee. I am able to scrutinise the Ministry of Social Development only to the degree that I understand what is happening within the Ministry of Social Development. That requires me to be able to extract information primarily through written questions, for example, or perhaps through the financial review process or by asking the Minister questions directly. What we have seen through the example laid out by my colleague Russel Norman is that we have got a case of the Prime Minister simply refusing to answer those questions. He is simply refusing to say, for instance, a pretty key piece of information around the revenue source of, and potential payments received from external sources by, the GCSB. I would consider that to be much more fundamental than an operational issue. I would consider that to be fundamentally an issue of our national security, and yet that is something that we will not get any transparency around. So how can we have any degree of confidence that an annual report would require that kind of information?

A second point—and I would love to hear from the Minister in the chair, the Attorney-General, on this issue—is that, as a member of Parliament, I can ask a chief executive directly through an Official Information Act request for operational questions to be answered if the Minister refuses to answer them. As it is our expectation that we can seek that operational information—

I move, That the question be now put.

The question is that the question be now put. Those who are of that opinion will say Aye, to the contrary, No—

💬 Hon David Cunliffe: I raise a point of order, Mr Chairperson. This is a bill of fundamental constitutional importance. The Committee has only recently embarked on it. I do ask your consideration of this.

The CHAIRPERSON (Eric Roy): Well, the member is trifling with me, so he ought to be brief.

💬 Hon David Cunliffe: Yes, Mr Chairman. In no way would I trifle with the Chair or with you. To my understanding, there have been only a limited number of speakers on this part—

The CHAIRPERSON (Eric Roy): Well, let me clarify that. Please sit down. Let me clarify that. Part 3 has four clauses. There have been 16 calls on this particular bill. I have been listening off air. There have been a number of closure motions. There is a degree of repetition. All of the measures that I say the Committee needs to determine whether it wants to continue or not have now been met. So I am putting the question.

💬 Hon David Cunliffe: A fresh point of order, Mr Chairperson—

The CHAIRPERSON (Eric Roy): A fresh point of order.

💬 Hon David Cunliffe: I raise a point of order, Mr Chairperson. We are accepting everything that you have said. I seek your guidance in the situation where members of Parliament have only recently had the opportunity to come to the Chamber and have not had the opportunity to make a contribution on this part, or on the previous one. Although this part is a short part by the number of clauses, it goes to the heart of the issue that is the most controversial in this bill, which is the degree of the independence of the oversight and the scrutiny of functions, which, it is accepted, are in many ways important but are highly controversial. So I would again submit, being one of those members who has not had an opportunity to speak to this part of the bill—and I know there are other colleagues here around the Chamber who are finding themselves in the same situation because of other duties—that you would use your good judgment and your balance—

The CHAIRPERSON (Eric Roy): And that I have done, and I will now put the question.