Government Communications Security Bureau and Related Legislation Amendment Bill

I rise to speak on the title and commencement clauses, and, in particular, in the first of my contributions to these two clauses, I want to speak to my typescript amendment to the commencement clause. For colleagues who have not had the opportunity to see it yet, the amendment that I am proposing to clause 2 reads: “This Act comes into force on the day that is 12 months after the date on which it receives the Royal assent, and only after a full independent inquiry into New Zealand’s intelligence agencies has been completed and recommendations from the inquiry have been considered by Parliament.”

The reason I am proposing to move that amendment in the Committee is that the haste and the rush that the National Government has been in to push this legislation through means that New Zealanders who are rightly concerned about the law balancing security and privacy have not had the opportunity to have those issues fully explored. It is unreasonable and unacceptable of this Government to trample over the rights of New Zealanders in order to see created a law that covers the intelligence agencies that act on their behalf go through in this haste. New Zealanders want to see a law that reflects our values, and New Zealanders value privacy. They also value security. And it is quite clear from the views of New Zealanders right across this country that they do not believe that the law as it has currently been drafted by the National Government creates that balance.

What it does is grossly expand the powers of the Government Communications Security Bureau (GCSB), tinker about with the oversight mechanisms, and create a situation where New Zealanders continue to lose trust and confidence in their intelligence agencies. So that is why my amendment to clause 2 would say, let us take the 12 months to have the full and independent inquiry that so many people want, before we allow this bill to come into force.

It is not just the Labour Party, it is not just the Green Party, and it is not just New Zealand First or Mana or the parties in this Parliament that are asking for this review; in fact, the Privacy Commissioner, the Human Rights Commission, eminent theorists like Sir Geoffrey Palmer, and the Law Society are all asking that there be a review, because people are uncertain about the effects of this bill. They are uncertain about whether or not there is a balance in this bill to protect both privacy and security.

This is relevant in terms of the commencement clause because we all know that the world has changed since the 2003 legislation went through. There are different kinds of threats to New Zealand’s security. That is absolutely true. But, equally, people all over the world are making much greater use of technology to communicate. People all over the world do their daily business, keep up with their families, and do all of the things that we do to communicate with one another in cyberspace. Therefore, on both sides of the coin, we need to see a balance of security, the protection of New Zealanders, and the protection of New Zealanders’ privacy.

We have not, through the process that this Government has undertaken, given sufficient time to consider how the world has changed. We have not given sufficient time to create a law for our intelligence agencies that reflects New Zealanders’ values, that reflects our commitment to democracy, that reflects our commitment to transparency, and that says we will have intelligence agencies that New Zealanders can be proud of, not some model from overseas, and not some model that panders to the interests of other people. That is why we must delay the commencement of this bill. We must delay it until there has been a full independent inquiry and the recommendations of that inquiry have come back to Parliament.

In the end, National can pass this law by one single vote. Well, what does that do to New Zealanders’ confidence in security and intelligence? What it says is that National will politicise these agencies. It is prepared to do a “willing buyer, willing seller” deal with Peter Dunne to push through something as significant as the powers of our intelligence agencies. This bill cannot commence until we go beyond the partisan politics of John Key and Peter Dunne, until we get to the point that we can actually say that New Zealanders have a reason to be confident about this legislation. They cannot be confident that a bill that passes with a vote of 61 to 60 and commences 1 month after the Royal assent will give New Zealanders the ability to restore their confidence in this law.

The proposed commencement date in my amendment is not only 12 months after the bill receives the Royal assent but also after we have the inquiry and that inquiry’s recommendations have come back to Parliament. It is important to know that the language of my amendment is that the intelligence agencies are subject to that inquiry. The intelligence agencies are not just the GCSB; they are also the SIS. It is very important that the SIS is included before this legislation commences. The Government actually had a review of the SIS under way and recommendations to change the law were ready to go, and they got pulled. The Prime Minister has never satisfactorily explained to this House why suddenly the SIS was off the table and we were considering only the GCSB. So my amendment to clause 2 is not just about whether or not we can get the GCSB into a shape that New Zealanders can have confidence in but actually that we understand all of New Zealand’s intelligence agencies and how they interact together. That is why I have moved an amendment to the commencement clause in order to delay that commencement date for 12 months and only after that inquiry is completed. I believe that that represents the will of New Zealanders that they understand the need for these agencies, but they want them to operate in a way that is transparent, that is accountable, and that reflects the values of New Zealanders. Those kinds of principles have been sorely missing from the way that John Key and National have gone about this change, and the way that Peter Dunne has presented himself as a “willing buyer, willing seller”.

My other comments that I want to make in the last couple of minutes of this call are around the title of this bill. The innocuous-sounding “Government Communications Security Bureau and Related Legislation Amendment Bill” sounds technical. It sounds like a title you would give to a bill that would breeze through this House and New Zealanders would barely notice. It is an inaccurate title because, fundamentally, the title of this bill should mention the expansion of powers of the GCSB, because that is what lies at the heart of this, and John Key has consistently misled New Zealanders about that. This bill includes whole new powers and functions for the GCSB. The bill expands the functions that already exist around assisting other agencies. It includes New Zealanders in what was once a foreign intelligence agency. It puts New Zealanders right in there. It puts the content of their communications right in there. So the title of this bill should make reference to the expansion of the GCSB’s powers. That would be an honest title for this bill.

The other title that members of the Committee might like to consider is the “Damage to Democracy Bill”, because the process that John Key has gone about of finding a “willing buyer, willing seller” with Peter Dunne and of pushing this legislation through the Intelligence and Security Committee, without even hearing from the GCSB or the SIS or the police or the Defence Force, damages our democracy. The dismissive way that John Key treats anyone who is a critic of this bill damages democracy. He threatens the Human Rights Commission’s funding. He says the Law Society does not know what it is talking about. He said today that if there was a terrorist threat, David Shearer would run for the hills. Well, David Shearer rightly said that he is the one who knows about terrorist threats. When he faced one in Iraq, he ran in to help the people. He did not run for the hills. It is John Key who is doing the running. It is John Key who is running from his press conference because he does not want to answer the questions. It is John Key who is avoiding the questions in this Chamber.

This bill should be titled the “Damage to Democracy Bill”, because John Key has done huge damage to the way New Zealanders view our intelligence and security agencies—right from the Kim Dotcom affair to appointing his mate Ian Fletcher, to run the GCSB to running this bill through the House so quickly that New Zealanders do not understand or know what this bill really does. But they know they are worried about it because they know that it is about the expansion of powers. The title of this bill is wrong. This bill is not a technical amendment to the GCSB legislation; it is a massive expansion of the powers of the GCSB without New Zealanders being given a say. This bill should not pass. The title should be changed. The commencement date should also be changed.

I rise to take a short call in this title and commencement clause debate on the Government Communications Security Bureau and Related Legislation Amendment Bill. I accept that it will be the last opportunity I have to speak to this bill before the vote is put. To echo the words of our deputy leader, who has just spoken, this bill is a travesty in terms of its title. It is not a clarification; it is a gross extension of the range and powers of these agencies. To be clear, the Labour Opposition has never stated that we believe this State should be without these capabilities. But we are extremely clear, as were the 2,000-plus people who crammed into the Auckland Town Hall last night to make their heartfelt opposition known, that it is not sufficiently balanced by proper and adequate safeguards of civil liberties and personal privacy.

Let me summarise why that is the case. There are no protections against the mass surveillance of metadata because they are not included within the definition of “personal communications” as set out in the bill. Rather, they fall within the definition of information infrastructure in the cyber-security provisions that include “all transmissions”, including anything that goes across any electronic or wireless network. That means that every email, every text message, every phone call, and every website visit of every New Zealander is able to be surveilled, firstly, in terms of its metadata, without a warrant, and, secondly, to establish a basis—and it may already be the case—for full interception without those warranting provisions, at least through the cyber-security clause.

The Prime Minister said on television, and has repeated in this Chamber, that he would personally rather resign before that happened. Well, why would he not write it into the bill? The fact remains that New Zealanders will never know, because there is no adequate oversight on this bill. There is no adequate oversight through the Intelligence and Security Committee. At best, it will get a compendium report at the end of the year, which will not include the details of what has been intercepted; merely the number of cases. That is not good enough. If the Prime Minister wants New Zealanders to accept his word, then he should put an amendment in his own name to this bill that gives effect to what he has said on nationwide television. At the very least he should stand and face a press conference without scuttling for the door when the heat gets turned up, and not have the temerity to insult our leader and other members of this House as being cowards when it is that member who has not completed his own press conference.

But that is small beer alongside the true nature of this bill. This bill opens a door that will be difficult ever to close. To think that it is being done by the merest wafer-thin margin of one vote, bought and sold for 30 pieces of silver and an overseas posting, I find absolutely reprehensible. It flies in the face of decades of bipartisan handling of intelligence and security matters. It is not good enough for New Zealanders. It is not good enough for our ancestors, who fought for the freedoms that this House is blithely putting aside—the Government is blithely putting aside—at the behest of one vote between a willing seller and a willing buyer, a buyer who was willing to trade New Zealanders’ privacy down the river, but was not willing to come to this debate and was not willing even to answer the questions in a press conference. But he was willing to insult David Shearer and other members of our party.

This is a sad day for the New Zealand Parliament. This is a sad day for our democracy. This is a day when the New Zealand Government can hang its head in shame. It will be a day that New Zealanders remember when they go to cast their ballots in what is left of our democracy in next year’s general election. There are issues that come and go, but they will remember that their freedoms have been compromised unnecessarily by a Prime Minister who may be adept at sleight of hand but is clearly not deep in principle.

I rise to speak on the title clause of this bill, the Government Communications and Security Bureau and Related Legislation Amendment Bill. Before I start I would just like to acknowledge the death a week ago of Bob Leonard, who was one of the founders of the Anti-Bases Campaign. He will be well-known to many people for dressing up as Uncle Sam at many of the Waihopai protests. It was people like Bob Leonard who drew attention to the Government Communications Security Bureau (GCSB) and the role of the GCSB long before many in the mainstream had perhaps picked up and understood its full significance. I think he would have very much appreciated the fact that the GCSB is now front and centre of the national debate, as, indeed, it should be.

In this title clause debate I would just like to talk about some aspects of the bill that have not come up so much before, and one of them is its impact on New Zealand’s information and communications technology sector, which I think has not been properly covered. Ian Apperley has written an article in the National Business Review in, I think, just the last couple of days. He is a cloud-computing expert, and he has talked about the impact of both the GCSB bill and the Telecommunications (Interception Capability and Security) Bill, or the TICS bill—which is its partner bill, if you like—on the New Zealand information and communications information sector. Why this is important is that the GCSB bill will affect not just the Government but will also have a big impact on, particularly, cloud computing.

The reason why it has a big impact on cloud computing relates to the access it provides to Government agencies to intercept all of the data that companies and individuals might be putting up into the cloud. The Telecommunications (Interception Capability and Security) Bill, the parallel bill to this one, requires that providers of such services, as well as internet service providers, install a back door into their services through which the Government can simply help itself to the information contained. What this means is that instead of the Government having to go through the front door and make requests, present warrants, and so forth, the Government can simply stick its hand into the cloud, or into the data that is stored, and take it without having to go through the front door of the company. What this means is that the GCSB bill empowers the Government to acquire all this information, and the telecommunications bill, which runs parallel to it, makes it technically possible and very simple for the Government to get the information. That bill is interesting as well, because it can also gag the companies from telling anyone that the Government has installed a back door on their systems.

What this sort of legislation means is that there is a flood of companies leaving the United States now. So with the PRISM system, which has been established in the United States, you have probably got—I mean, the article in the National Business Review said that 10 percent of all the contracts have been cancelled across the United States. Many tens of billions of dollars’ worth of business is now leaving the United States, because the United States is no longer a secure environment in which to store data because of the PRISM system and because of the back doors that have been installed in all these data storage systems. This is a very significant development, and what we have seen in Switzerland, which bases itself on a secure data model, is that it has had a doubling of its cloud-computing services and the money that is being spent in Switzerland on cloud computing, as it has established itself as a secure location for information.

This is a very significant development for the information and communications technology sector in New Zealand. What we do not realise is that this Government’s attempt to cripple the New Zealand information and communications technology sector will cost the sector somewhere in the order of $2 billion over 3 years in terms of lost business, as estimated by the article in the National Business Review. This is a sector that is growing rapidly and it should be part of New Zealand’s future. It is part of a smarter, greener economy for New Zealand. It deals with some of the issues around the distance from our markets because, of course, information is gravity-free, so it is a great way for us to make money while being a long way from our markets. And, of course, we have access to renewable energy, so there are some real advantages for New Zealand in the information and communications technology sector in terms of building a smarter, greener economy.

But the bill that the National Government is supporting will cripple the information and communications technology sector. That view is coming from the experts themselves in the cloud-computing area and in the New Zealand information and communications technology sector, and that is why we have seen such strenuous opposition coming from many of the leading companies involved there. What this means is that the Government, which prides itself on economic policy and tells us how great it is in that regard, is, in fact, passing a piece of legislation that cripples one of New Zealand’s growing and quite important sectors, and I think that that is a little-understood part of this whole debate.

The other part that I think is important, if we are debating the title, which is supposed to include the words “Government Communications and Security Bureau”, is the question of who on earth this agency really works for. There is this whole issue about the global framework within which the GCSB operates. The issue that I have been raising is around the issue of funding, but it also relates to the issue of the “Five Eyes” network.

So the GCSB is a member of the “Five Eyes” network, which is, essentially, run by the United States, but has a number of smaller of countries of Anglo origin involved in it—that is, Canada, New Zealand, Australia, and the UK. What has become clear during the revelations from the Snowdon leaks is that these five countries working together as part of “Five Eyes” have been spying on a lot of other countries, which are now extremely upset with the “Five Eyes” network and are very unhappy—particularly the European Union countries—that the United States and the United Kingdom have been colluding to spy on all their internet traffic. That is why the issue of the US Government’s funding of the GCSB is critical to this whole debate, and why it was such a scandal in the United Kingdom when it was revealed that the US Government, the National Security Agency, had provided about £100 million in funding to the equivalent of the GCSB in the United Kingdom—that is, the GCHQ, or the Government Communications Headquarters.

If these agencies are working independently of the Governments that they are supposedly reporting to because they have independent sources of funding—because the US Government will fund them in order to do activities, as we saw in the United Kingdom—then who on earth do they work for? Do they work for us? Is it really the New Zealand Government Communications Security Bureau, or is it some part of the US Government? If it is taking large amounts of money from the US Government in order to do what the US Government wants it to do, that gives it an element of independence from New Zealand citizens, who are supposed to be controlling it via the elected Government. And, of course, if it has its own sources of income, that gives it an independence from the New Zealand taxpayer, who provides the money.

The Prime Minister said that under various circumstances he would resign if it turned out that the GCSB was involved in mass surveillance, and so forth. Well, my challenge to him is this. Will he resign if it is discovered that the GCSB is in receipt of foreign money? That is my challenge to the Prime Minister. He has said: “Well, this mass surveillance thing. That won’t happen, and I will resign if anyone finds out that I have been engaging in mass surveillance.” But, of course, how would we find out? It all operates secretly. So he does have that very important caveat. But will he resign if it turns out to be the case that not only was the National Security Agency providing £100 million—which is hundreds of millions of New Zealand dollars—to the equivalent agency in the United Kingdom but it was also providing millions of dollars to the GCSB in New Zealand, or some other such support? Will the Prime Minister resign? He refuses to answer the question as to the funding of the GCSB and whether it takes foreign Governments’ money.

For which other Government organisation would we think it was acceptable for it to be working for another Government? In respect of which other Government organisation would we say: “OK, that’s OK. You are funded by another Government, a foreign Government, and you are working for that other Government. That is acceptable modus operandi, and you won’t even tell us how much money you are taking from the US Government.”? It seems to me that it is fundamental to our democratic structure and the accountabilities to this Parliament that the GCSB and the Minister responsible for it should be forced to tell us, as New Zealand citizens, whether the GCSB is in receipt of money from a foreign Government, but the Prime Minister has repeatedly refused to answer the question.

My suspicion is this: if he could deny it, he would. If the Prime Minister could deny that the GCSB was in receipt of money from a foreign Government, he would deny it, because it is very damaging. But he refuses to deny that the GCSB has been in receipt of money from a foreign Government. That leads me to the conclusion that it is more than likely that the GCSB, just like its equivalent in the United Kingdom, has taken money from the US Government, and hence it does not work just for us. In fact, it also works for others, and that is entirely the problem with the oversight function.

When you have a rogue agency like this, which is not only breaking the law repeatedly but also possibly, or quite probably, in receipt of money from the US Government, it is very critical that we have proper oversight in place, and we do not have that kind of oversight. It is for that reason that the Green Party has consistently supported the call for a proper inquiry, and we will be supporting Grant Robertson’s amendment to the title clause so that there is a proper inquiry before this legislation ever comes into force. Thank you.

I want to support the amendment in the name of Labour’s deputy leader, Grant Robertson, that this Government Communications Security Bureau and Related Legislation Amendment Bill should not commence, should not come into effect, until after there has been a full and independent public inquiry. The reasons for that, I think, are obvious even to the Government members who are supporting this legislation. First, what we have had is a poor process and a rushed process that has given the New Zealand public no confidence that the case has been made out for the significant expansion of the power of the Government Communications Security Bureau (GCSB). We have a public that has no confidence that the oversight mechanisms proposed in this legislation are anywhere near adequate to protect the privacy of New Zealanders living in a democracy and to stop the unwarranted intrusion into the privacy of individuals by an agency that works in secret and is being given more extensive powers.

There is another reason that there needs to be a full independent public inquiry into this legislation. The tradition in this House has always been that consensus is sought because of the importance of democracy and because of the fundamental powers that can be exercised in secret by the security agencies. Consensus has never been sought by the National Government. It is a fact that John Key said to David Shearer that he was not interested in Labour’s support, because he could get support from Peter Dunne. This legislation will go through on the vote of one discredited and disgraced member, who was sacked—

💬 Hon Trevor Mallard: Two of them.

—I will come to the second one in a moment—because he leaked the report on the GCSB. It is going through on the vote of one discredited member who said “under no circumstances” would he support giving the GCSB the power to spy on New Zealanders. That is what the strength of support for this legislation is: a man who broke his word, who broke his promise that he would not support it—a man who leaked the report and was sacked by the Prime Minister for doing it.

We want to talk about the second member whom Mr Mallard mentioned. He is the man who was intimately involved with Kim Dotcom but could not remember the helicopter ride, could not remember the XL-sized person whom he went to visit in the biggest house in the country, and, most of all, could not remember the $50,000 that he asked for in the form of two cheques of $25,000 each. I say to you that what this legislation needs is the basis of consensus of support across the House, and the National Government has not even made the effort to do that—has not even made the effort to do that. There will be no confidence among the New Zealand public in a piece of legislation that is rammed through this House on the vote of two people in whom the public has no confidence, who are disgraced and discredited members.

I want to say another thing about why we need the full and independent inquiry. We need it because not only does there need to be a consensus of support across this House for such legislation and the extensive powers that it confers but also there needs to be a basis of trust and confidence by the New Zealand public, and the New Zealand public has no trust and confidence in our security agencies. That was proven in a poll that was done by TV3 that showed that 40 percent of New Zealanders did not trust the GCSB, and in a more recent but perhaps less scientific poll that showed that 89 percent of New Zealanders—50,000 of them who gave their name and address in their email—said that they were against this legislation. It was 89 percent. We do not have the basis in this House or in this country for this legislation to pass. It is a disgrace that the Government is ramming it through against the wishes of New Zealanders and without proper process.

The Government would not even let the GCSB give evidence and be questioned by the Intelligence and Security Committee. What sort of legislation is it that we are passing where the agency that we are giving extensive power to is not allowed by the Prime Minister to appear before the select committee? How do we know how efficient and effective that agency is when it is not allowed by the Prime Minister to be subject to scrutiny? How do we know whether those powers are justified or not?

The Prime Minister in his panic talked about the Boston bombings and al-Qaeda. The Prime Minister knows, as I know and every member of this House knows, that those terrorist agencies and individuals can right now be placed under the scrutiny of both the SIS and the GCSB. Those sorts of scare tactics do no credit to the Prime Minister. The legislation is in place. What we do not have is legislation that also gives the GCSB, which shares its intelligence with overseas agencies, the power to spy on New Zealanders.

You have got to think about the origins of this legislation. We are discussing this legislation because the GCSB acted illegally in the first place. It subjected Kim Dotcom to scrutiny for which it had no legal authority. Then, when the Kitteridge report was produced, it showed that the GCSB had put another 85 New Zealanders under surveillance for which it had no legal authority. You would think that this legislation would have responded to those two incidents by strengthening the safeguards that New Zealanders have against the abuse of power. You would think that that would happen, particularly when the National Security Agency in the United States has been found to have illegally subjected tens of thousands of Americans to surveillance, and when the Government Communications Headquarters in the United Kingdom has been found to have been spying on its friends, not its enemies. You would think there would have been caution. You would think that the Government would have reached out to the Opposition and said that, yes, we need security agencies—and the Opposition agrees with that—but we need them to be subject to proper protections of the rights and privacy of New Zealanders. That is not in this legislation.

This legislation is patently inadequate. That is not simply the view of this Labour Opposition; it is the view of the New Zealand Law Society. But what does the arrogance of the Prime Minister tell us? That the Law Society does not understand what is in the law. Some of the top Queen’s Counsel in this country have condemned this legislation, but John Key—minus “QC”, or any other law qualification—says that they do not know what they are talking about. Then the Human Rights Commission, which was established by the Government to protect the rights of New Zealanders, says that this legislation will not do, it gives intrusive powers, and it does not provide safeguards against abuse. What does our Prime Minister do? He threatens the funding of the agency for having the temerity to do the job that under statute it is required to do in this country.

Then there is the Privacy Commissioner. The Privacy Commissioner, a woman who was the Secretary of the Cabinet for over a decade, says that this legislation is not ready, is not adequate, and needs to go back to the drawing board. The Government ignores that comment from a woman who understands very well what this legislation could and should, but does not, provide. It is abundantly clear to the country and to this Committee that this legislation is not appropriate, will not survive in this form, does not do the job expected of it, and does not protect the essential rights of ordinary New Zealanders to be protected against the abuse of powers by agencies that act in secrecy and have no scrutiny over them.

Then we have the other problem. I do not know how you deal with this problem in legislation. The Prime Minister has enormous power of oversight and control, but he misuses that power. He appointed the Director of the Government Communications Security Bureau by an appointment process condemned by the State Services Commissioner. He said, when it was finally extracted from him: “Oh, yes, I do know this person but not very well.” He has known him since they were both children at school. They had dinner together, which he did not ever admit, and now the Prime Minister wants us to believe that we should pass a piece of legislation that will say something, not because it is written into that legislation, but because he will give a speech in the third reading debate and say “This is what I intend.” We do not need legislation that is what the Prime Minister claims he intends. We need clear, specific, and good legislation that says what this House means, and this legislation does not do what the Prime Minister says that it does. There is every reason why this legislation should be reconsidered.

This Government Communications Security Bureau and Related Legislation Amendment Bill undermines trust in our parliamentary democracy. It reduces the power, the ministerial accountability, and the oversight from what it could be. The lack of consensus around the bill, which my colleague Mr Goff has drawn attention to, places public trust on the line and puts it in jeopardy. That is not acceptable.

This bill fails some simple tests of some simple management principles. I think that it could be renamed, or more accurately named, the “Government Communications Security Bureau and Related Legislation Amendment (Failure to Apply Simple Management Principles) Bill”. This bill does not clarify sufficiently the lines of accountability. That is a simple management principle. When you have set your objectives—and we do not quite know whether those have been adequately set either—then you have some clear lines of accountability for delivering them, you have transparency, and you have sanctions and rewards. Those are four simple management principles: you have a clear goal, you have lines of accountability, you have transparency around reporting, and you have sanctions and rewards. Those are simple management principles. This bill does not adequately address these principles. It does not provide for them.

The way to get adequate provision for these simple principles would be to have a full and independent inquiry. We know that that has been ruled out by the Prime Minister. He does not want to see the 88 illegal spying incidents that the Kitteridge report gets into to be looked further into—the leaked report, I might add. He does not want to answer more questions about the journalist’s emails that were released or were not released—we are not sure quite whether the email was recalled, or who was looking at what and why. He does not want to get into the Henry inquiry. He does not want to front up on this issue any more because it has been an embarrassment from start to finish.

Everything to do with the Government Communications Security Bureau has been an embarrassment from start to finish for a Prime Minister who does not have adequate oversight of his department. That is where these simple principles, if they were outlined clearly, would make it much clearer whether the Prime Minister was doing his job—were he to be doing his job. They would, I have no doubt, be the recommendations of a sensible, independent report that looked at these agencies. These particular principles ought to be strengthened. We ought to have clear purposes and goals, we ought to have lines of accountability, we ought to have transparent reporting, and we ought to have sanctions and rewards for a Minister as to whether they are doing their job correctly. That is the job of Parliament. But what we are increasingly seeing here is a Prime Minister who does not know—or does not want to know—what is going on under his watch. He cannot duck this ministerial responsibility, and nor should we put through legislation that allows him to do that when we know that New Zealanders are losing their faith in this agency that he is responsible for.

Instead, we should have the opposite. That is why the call has been put out by the Labour Party for a full and independent inquiry—to restore trust in these agencies. The Labour Party believes that New Zealand needs adequate security arrangements. In fact, it wants the best possible security arrangements with the best possible guarantees given to New Zealanders that the powers of our intelligence agencies are exercised and not misused and that the surveillance that is done is properly and appropriately targeted.

New Zealanders as a whole accept the need for security agencies, but they do not accept that they should be snooped on without due cause, without warrant, and without clear lines of accountability back to the Minister responsible for these. That Minister is John Key, the one who was running for the hills when it came to press conferences yesterday—not running in to help, but running for the hills. That is our Prime Minister, running away from these responsibilities. The bill that is here in front of us enables the Prime Minister to run further, so we repeat our call for a full inquiry into the intelligence services.

This bill also snubs the experts, and could also be titled, more accurately, I would suggest, the “Government Communications Security Bureau and Related Legislation Amendment (Snubbing the Experts) Bill”. We know that the Human Rights Commission exercised its powers and took the unusual step of exercising a statutory power to issue a report directly to the Prime Minister because of the seriousness of the issues raised in this bill. John Key rubbished it, tried to downplay it, and threatened the commission’s funding, but the report stated clearly “that a full and independent inquiry into New Zealand’s intelligence services [should] be undertaken as soon as possible.” That is the first expert.

The next expert, the Privacy Commissioner, suggested that because of the complex and dynamic environment, this topic needs to be considered in further detail. The commissioner said: “The effects on individuals are potentially very significant, and it is important to get the legislation right.” That comment by the Privacy Commissioner is backed up by New Zealanders. They believe that too. Likewise, the Law Society—

I move, That the question be now put.

The reality about the Government Communications Security Bureau and Related Legislation Amendment Bill is that its name is totally misleading, because this is not some sort of benign and innocuous reconfirmation of an existing piece of legislation, or, for that matter, an affirmation of an existing organisation in its current form. This legislation makes radical changes to the Government Communications Security Bureau (GCSB) as we presently know it, and to the powers that it will be allowed to exercise. The name of this bill is very important. What we call it will be very important. And it is very important because of what we know. The way that this debate has been conducted—not so much in this House but in other forums around New Zealand—has been to mislead many New Zealanders about the reality of what is happening.

The truth about it is that the way the bill is drafted gives extraordinary extensions to the powers of the GCSB, not the least of which is its change in definition from “computer system”, which is the language presently used and is the area in which the GCSB is statutorily mandated to operate, to “information infrastructure”. The definition of “information infrastructure” is as wide as you could possibly imagine. It includes “electromagnetic emissions”. It includes “communication systems and networks”—entire networks. It includes what is described as “information technology systems and networks, and any communications carried on, contained in, or relating to those emissions, systems, or networks”. There could not be a more comprehensive definition of the way that information and communications are carried and conveyed in New Zealand today. That sets the scope for what the GCSB is now going to be allowed to do.

So to say or to give the impression in its title that this bill is simply about reaffirming or tidying up what the GCSB presently does is just totally misleading. On that basis, the GCSB is given the power to intervene into, intrude on, and invade the privacy and the protections that every citizen would ordinarily expect, and is entitled to expect, when it comes to communicating and storing digitally information about themselves. That is one of the critical things about the way this debate has been conducted.

It is not just peculiar to this legislation but certainly peculiar to this Government that basic citizens’ civil or human rights, which we have enjoyed, which are confirmed in legislation that we have, and which are confirmed in international agreements, are continually put up now as conditional on some other agenda or objective that this Government has. It is no longer enough to claim an inherent right to privacy. That is now dependent upon something else that this Government might put up, like an economic or corporate condition that might be overlaid with it. This is the insidious thing about this piece of legislation.

We are entitled to a basic right of privacy. We do have a right to be free from unreasonable search and seizure, which this bill compromises. We do have a right to freedom of expression. Those rights are not dependent upon anything else; they stand on their own. We are entitled to claim those and we are entitled to have those rights protected, and this bill fails to do that. So the name of this bill, and the impression that has been given from the outset and throughout, has been misleading.

The scope of this bill is now extended to intruding on New Zealand citizens. It was originally confined—and all the drafting of the present Act makes it very clear—to foreign intelligence and intelligence on foreign citizens. Now this bill makes the giant leap and gives the power and the scope to the GCSB to intrude upon the privacy and the protections of every New Zealand citizen.

The safeguards that we would ordinarily expect in a piece of legislation like this are non-existent. There is an attempt at providing safeguards, but the exclusions and the exceptions make them a nullity, make them nugatory, and proposed section 14, as set out in clause 12, is the classic. There is a loophole there in the protection against interception of New Zealand citizens’ communications and digital information, and that is not good enough. It goes on to say that anything that is incidentally obtained by the GCSB is not to be considered as having been obtained unlawfully. [Bell rung] That is the—

The CHAIRPERSON (Eric Roy): Order! The member needs to seek a call if he wants another one.

Mr Chair?

The CHAIRPERSON (Eric Roy): I have probably implied that it is Andrew Little, so I will give him the call.

Thank you, Mr Chair. I apologise. I was thrown by the bell, and it was happenstance, as we discovered earlier today. I say that without wanting to accord any undue levity to this piece of legislation, because this is a grave matter and, despite every effort by this Government to reduce its significance and to minimise it to the citizens of New Zealand, the reality is that citizens have woken up to the insidious powers contained within this bill. One of those aspects is that it goes on to say that even though there is a defined scope of the information that the GCSB can secure and the level of interception that it can indulge in, there is a proviso that says that anything obtained outside those powers is not to be regarded as having been obtained unlawfully. Well, that is no protection at all. That is like all of the so-called safeguards in this legislation—that is, there are exceptions to them that mean that they mean absolutely nothing at all. And that is what is so frightening to those who have looked closely at the legislation—those who do not sit inside this Chamber, but those institutions and organisations on whom this House routinely relies to provide independent scrutiny of legislation and give advice to us.

The Intelligence and Security Committee heard from submitters, not the least of which was the New Zealand Law Society, and let me be very clear about that. The original submission from the New Zealand Law Society was drafted by probably one of New Zealand’s pre-eminent human rights lawyers, Dr Rodney Harrison QC—in fact, not just one of but the pre-eminent New Zealand human rights lawyer.

💬 Hon Trevor Mallard: He got his Queen’s Counsel for good reason, too; not because his mates gave it to him.

He got his Queen’s Counsel because he did what most Queen’s Counsel are required to do, and that is to take difficult, unpopular cases and argue them through the full hierarchy of the courts, and he did very well. He was very clear about the extraordinary encroachment on citizens’ rights that this bill represents. Then, when the Prime Minister introduced his Supplementary Order Paper 306, it was not Dr Rodney Harrison QC who commented on that but another Queen’s Counsel, Austin Forbes QC, a former president of the Law Society, and a man of great eminence in the legal community and in the New Zealand community generally. He said that the Supplementary Order Paper that the Prime Minister put up provided no further safeguard than was there before, and he reiterated and confirmed what the Law Society had said—that nothing less than a full inquiry into the need and the rationale for the changes to this bill and an investigation into its impacts was required. That was a point taken separately and independently of the Law Society by the Human Rights Commission and by the Privacy Commissioner, as well, which are statutory bodies we look to in order for them to give us advice about the legislation that is passing through this House. It is wrong for their advice to be treated as dismissively and as derisively as it has been by this Prime Minister and this Government.

This is a very sad day for New Zealand and this week will be a very sad week for this House as we pass this legislation in contempt of those with great authority and wisdom who are telling us it is not the right thing to do. No one is arguing against the need for good security agencies—well-supported and well-resourced security agencies—but when we take a step in this House and pass legislation that intrudes extraordinarily on the basic rights and protections that every citizen in this country is entitled to have and to have upheld by this House and the enforcement agencies of government, then that is a step that we should take very, very cautiously and very, very carefully. We should take it with full knowledge and understanding of the impact that we are making. We do not have that luxury with this piece of legislation, because it has been rushed through, pushed through, and bulldozed through by a Government that is no longer listening to the people of this country. People are concerned, and they are right to be concerned, because, whichever way you read this legislation, it is simply cause for great fright and fear.

This legislation should not be named the Government Communications Security Bureau and Related Legislation Amendment Bill. It should be the “Unfettered State Security Agency Bill”, or it might be called the “Government Communications Security Bureau (Extraordinary Powers) Bill”, because that is what it is, and that is why New Zealand citizens are concerned. Not a single member of the Government has stood to defend it today, and that is even more outrageous in terms of this important and very sensitive piece of legislation. Every citizen is entitled to look to every member of the Government and ask: “How do you defend this bill?”.

I move, That the question be now put.

Thank you very much, Mr Chair, for the chance to speak to the title and commencement clauses of the Government Communications Security Bureau and Related Legislation Amendment Bill. Just as my colleague Andrew Little finished off in his speech by giving an alternative title to this piece of legislation, I would also like to offer up an alternative. I would like to scrub everything other than the word “Security” and have the words “Peter Dunne Retirement Plan Security Bill”, because the only reason that this piece of very important legislation is going to pass through the House is Peter Dunne. He is someone who went to speak to the media and said “I will never, ever fathom voting for a piece of legislation where New Zealanders are spied on by the GCSB.”, and no more than a week later changes his mind. I hope that the good people of Ōhariu take a look at the performance of Mr Dunne in this respect, because he was someone who entered that “willing buyer, willing seller” scenario and has bought himself a situation where I think we can ably call this bill the “Peter Dunne Retirement Plan Security Bill”.

This bill has been rushed and has been pushed and has been bulldozed through this House and will pass with a wafer-thin majority of one vote: 61 to 60. I do not think that most New Zealanders are very impressed at the way this Government has gone about trying to get this legislation through the House, this very important legislation, with such a wafer-thin majority, given the major concerns that people have about it. We certainly saw that in the protests 2 or 3 weeks ago and in the public meeting that was held in Auckland last night with a turnout of somewhere between 1,500 and 2,000 people.

I want to talk about an amendment in the name of our deputy leader of the Labour Party, Grant Robertson, which is looking to amend clause 2, the commencement clause within this bill. For the benefit of those listening and watching at home—and I think, seriously, there will be a sizeable audience of people watching this debate—

💬 Hon Maurice Williamson: Don’t kid yourself.

—not for any contribution from Government members, who are so proud of this piece of legislation that the best that we get from across the Chamber is a closure motion. They are so proud of this bill that all we get from that side of the Chamber is a closure motion—that is the sum of the contribution.

💬 Hon Maurice Williamson: The last three viewers turned off when this member started speaking.

Get up and take a call, then, Minister. Get up and take a call, and just show us how proud you are of this legislation. You are quite happy to interject. I would quite happily see you get up and take a call. But I doubt that you will get up and speak to it, because none of the others have gotten up and had the—

💬 Darien Fenton: Gumption.

—gumption to get up and take a call. Getting back to before I was interrupted by the member who will no doubt not take a call and who will stay silent in the Hansard, Grant Robertson’s amendment does look for this legislation to come into force 12 months after the date of Royal assent, and only after a full independent inquiry into New Zealand’s intelligence agency has been completed. This is something that Labour has found fundamental during this debate around this bill. Some people at home may say that this is just political, and that the Labour Party wants to see an independent inquiry just for political reasons.

But let us just have a look at who else wants an independent inquiry: the Human Rights Commission. The Human Rights Commission said in a report that it put forward off its own back: “a full and independent inquiry”—

💬 Hon Trevor Mallard: Is David Rutherford a National Party member?

I do not know the answer to that question, Mr Mallard. The Human Rights Commission said: “a full and independent inquiry into New Zealand’s intelligence services [needs to] be undertaken as soon as possible.” I also want to give some context to those comments, because when David Rutherford made those comments off his own back, he got attacked by the Prime Minister. The Human Rights Commission office got attacked by the Prime Minister, not just because of what it said but the Prime Minister said that it should watch out for what it says because its funding may be at stake—it should watch out for what it says because its funding may be at stake.

But the Human Rights Commission went on. It said: “What we cannot be certain of without an inquiry of this nature is 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.” The Human Rights Commission has serious reservations—

I move, That the question be now put.

The question is that the question be now put. Those of that opinion will say Aye—

💬 Hon Trevor Mallard: That’s ridiculous—a total lack of democracy in Parliament. This is just outrageous. This is outrageous.

The CHAIRPERSON (Eric Roy): Order! The Clerk will conduct a party vote.

💬 Hon Trevor Mallard: That is outrageous.

The CHAIRPERSON (Eric Roy): Does the member not want a party vote?

💬 Hon Trevor Mallard: Yes, of course we want a party vote—

The CHAIRPERSON (Eric Roy): We will now have a party vote.

I move, That progress be reported in order to request from the Speaker a ruling as to whether seven calls on the first three clauses of this bill are sufficient for democracy in New Zealand.

The CHAIRPERSON (Eric Roy): You are moving that the Speaker be recalled?

I am.

The question is that the Speaker be recalled. Those of that opinion will say Aye, to the contrary, No. The Ayes have it. [Interruption] Is the member seeking a party vote? That is a departure from what normally happens. I have declared—

💬 Hon Christopher Finlayson: Before you do, I raise a point of order—

The CHAIRPERSON (Eric Roy): No, no, we are now—

💬 Hon Christopher Finlayson: Well, that creature should apologise for what he said.

The CHAIRPERSON (Eric Roy): Order! The Speaker shall be recalled.

Motion agreed to.

House resumed.

Speaker Recalled