Government Communications Security Bureau and Related Legislation Amendment Bill

The House is in Committee on the Government Communications Security Bureau and Related Legislation Amendment Bill. Can I respond to the member who apologised. I did not hear the member. Had I heard him, I would have required him to apologise. I will just make it clear that there was a bit of noise. I think it probably best that we cast the votes again because I am not sure what stage we were at. So I will ask the—[Interruption] Oh, we have cast them all. They are all here. The Clerk has done a sterling job. In the closure motion, the Ayes were 61 and the Noes were 60, so the motion is agreed to. I will now put the questions.

There is an amendment in the name of Grant Robertson, a typescript amendment to clause 2. This is out of order on two conditions. Members might like to have a look at Speaker’s ruling 117(2). I think members might be aware of this Speaker’s ruling, which requires that an amendment cannot be determined on an indeterminate event. Secondly, it is against the will of the Committee expressed when the Committee voted on clause 25A, which required the provision of an inquiry.

💬 Grant Robertson: A minor detail.

The CHAIRPERSON (Eric Roy): A minor detail. So we will put the question on clause 2.

I move, That the Committee divide the bill into the Government Communications Security Bureau Amendment Bill, the Inspector-General of Intelligence and Security Amendment Bill, and the Intelligence and Security Committee Amendment Bill, pursuant to Supplementary Order Paper 307.

The Labour Party is going to oppose this particular Supplementary Order Paper because it is our view that it will be appropriate to have such a confused, such a badly drafted, such an ill-advised bill in the most confusing form that it can be, and that will be as a result of having a stand-alone piece of legislation rather than having this in the various bills, as is the intention of the Prime Minister. The really important point with legislation is that it is well drafted, that it is well understood, and that people can easily go from part to part of it. It is really important that as legislation is drafted and as it is divided properly, the particular sections have in them exactly what is meant to be there. To do that, what is required is for a proper motion for the division.

💬 Grant Robertson: There isn’t one on the Table.

I just want to question the order of the debate that we are now having, in that it is my understanding that in order for a Supplementary Order Paper to be debated, there is a requirement for it to be on the Table of the House. It is my understanding that there is not one of these currently on the Table of the House.

The CHAIRPERSON (Eric Roy): The member is correct. As we speak, copies are being prepared. It is a debatable motion and I ask for a bit of forbearance while that actually happens.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): I am seeking a bit of advice on the matter. It is customary to have papers on the Table. It does not prevent the debate from occurring. The member may continue.

Speaking to the issue now, I think the last time that I can remember an issue being debated in Parliament without it being on the Table of the House was in the time of Muldoon. A tradition of the New Zealand Parliament is that if you are debating something, you have the courtesy to tell the House what you are debating. Here we have the principal law officer of Parliament sitting in for the Prime Minister, who does not have the fortitude to come to the House, because the Government does not get itself properly prepared and have the requisite motions sitting here. It is a hopeless, disorganised, useless Parliament. And what is so silly is that anyone would think that a damn QC would be bright enough to get out a pen to write something down, to send it out and get the 10 copies, and put it on the Table of the House. But—

The CHAIRPERSON (Eric Roy): Order! I am sorry to interrupt the member. The time has come to suspend the House in Committee for the dinner break. I shall resume the Chair at 7.30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (Eric Roy): The House in Committee on the Government Communications Security Bureau and Related Legislation Amendment Bill is resumed. The Committee is considering the motion of the Minister responsible for the GCSB to divide the bill set out on Supplementary Order Paper 307. For some members who may not have been part of this debate before, let me just say this is the narrowest of all debates. It is whether the bill should be divided or not, and the debate should relate and pertain to those matters. The Hon Trevor Mallard has the call. He has about 2½ minutes remaining.

Thank you—I am on my first call, Mr Chairman. I do want to compliment the Minister currently in the chair, the Attorney-General, for at last getting the Supplementary Order Paper that we are debating on to the Table. I see that the Attorney-General, the one with the various jurisprudential fetishes, is waving his finger around. Of course, he knows what that means. He gets off on technicalities. In this particular case what we have is a motion to divide the bill and a Supplementary Order Paper to do that, but, unfortunately, the ill-prepared, ill-disciplined, and generally useless Attorney-General, who is sitting in for the Prime Minister on this particular occasion, did not have the foresight to make sure that this was on the Table of the House at the appropriate time. It is a pretty basic job for the Minister who, for the time being, is in charge of the legislation in the House to ensure that this particular Supplementary Order Paper that we are debating is available. It was not available.

The Minister got up and moved a vague motion—and, in fact, it is interesting now that you, Mr Chairman, have stated a motion that the Minister did not state when he actually moved it. So we are in an interesting position now, but I accept that maybe you have in your very generous way done the work for the Attorney-General in getting him back into line when he was so far out as a result of his lack of preparation. I think that generally on this side of the House we will almost certainly vote for this Supplementary Order Paper when and if—tomorrow or the next day, whenever—we get to the decision on it. But we do so only to have a very disorderly bill a little less disorderly than it would otherwise be and to make it slightly easier when—well, I suppose it is mainly done online now—the poor people have to go around sticking the amendments into the various hard copies of the legislation and to make their job somewhat easier than it would otherwise be.

I think it is fair to say that getting this bill divided in the way that is proposed will be useful. I think everyone should be aware of the fact that this will be legislation that is looked at much more—I was going to say much more than a fisheries amendment Act, but, of course, with snapper that is probably not quite the case. These Acts will be looked at much more often than will be the case for the general run-of-the-mill legislation that this House considers from time to time.

The proposition is from the Prime Minister, and I will be interested to see whether the Prime Minister decides to take the chair for this particular debate. It would be precedent setting. He does not appear to want to take the chair for any part of the Committee stage of this bill. Of course, being across the detail of legislation is something that he does not want to do. But Supplementary Order Paper 307 is in the name of the Prime Minister, and what he is proposing to do is to drop out a number of words and to put in some new headings. What the headings effectively do is divide the bill into three. That is exactly what we are debating, and whether, in fact, the title—I mean, one of the questions I have is whether, even at this late stage, it is amendable. Well, I am not sure.

If one looks at the name of the legislation, there is the title of the Government Communications Security Bureau Amendment Act 2013. Like a number of people over the dinner break, I have had a look at this area. I can see that McGee is open not far to your left, Mr Chairman. To be fair to Mr McGee, he should be right in front of you. To suggest that Mr McGee is to your left or to your right would be something. Although I think the last time we had this approach it was from—just a slight diversion—the Rt Hon Sir Muldoon, before he was knighted. He declined to appoint Mr McGee—

The CHAIRPERSON (Eric Roy): Order! Come back to the debate.

—to the Clerk-Assistant position because he did not like Mr McGee’s rulings. But that is not to suggest that Mr McGee should be placed to your left; he should be front—

The CHAIRPERSON (Eric Roy): Order! The debate—

That is right. The point that I am getting to is that not only should McGee be considered on this question but I am looking for and cannot see that you have referenced Erskine May. If we are actually going to look carefully at the appropriateness of this particular Supplementary Order Paper—and what I have said is that the Opposition is ready to be convinced. If the Attorney-General or the Prime Minister, if he decides to take the chair, comes to the Chamber and makes an argument, I am certainly prepared to vote for this Supplementary Order Paper.

💬 Darien Fenton: Eh?

For the Supplementary Order Paper only—to divide it. I am prepared to be convinced. [Interruption] No, it is not a conscience vote, but the question is whether this will make a disorderly bill slightly more orderly than it would be.

💬 Iain Lees-Galloway: It’s a harm reduction.

Well, you know, I am not sure. The depth of the debate around it and the points that should be raised and should be looked at—later on, in my next call and future calls, we can go more deeply into Erskine May, although I think it is fair to say that the position in the British Parliament and the relation between the House and the Committee is somewhat different. Although the Attorney-General may think he is a lord, I note some of the detailed discussions that are had in the British Parliament. Is the Attorney-General mute in the British Parliament? It would be a great thing. I know that the whips are mute. The whips are mute in the British Parliament.

I move, That the question be now put.

It is a pleasure to take a call on this Supplementary Order Paper 307, which divides the Government Communications Security Bureau and Related Legislation Amendment Bill into three bills. For me, this Supplementary Order Paper sums up what might be called an existential crisis for this bill—that is, the extent to which this bill is able to change the nature of our security intelligence agencies. The fact that in doing so it has to divide itself into three at the end point to me describes the existential crisis that this bill and the Government has when it comes to its security and intelligence agencies. One of the reasons why I am not of the same view as my colleague Mr Mallard about being able to vote for this Supplementary Order Paper is that for me this sums up what is wrong with the whole process—and that is that because the Government has failed to look at New Zealand’s wider intelligence network in putting together this legislation, the division into three bills just makes it all the more obvious how stupid that is for New Zealand.

We should, perhaps, not be creating three bills out of this but be creating one single piece of legislation that covers all of our intelligence agencies. That would be the outcome of the kind of review that the Labour Party has been proposing for many months. We simply cannot consider three individual pieces of legislation titled the Government Communications Security Bureau Amendment Act 2013, the Inspector-General of Intelligence and Security Amendment Act 2013, and the Intelligence and Security Committee Amendment Act 2013. To have three bills divided in that way—

💬 Hon Trevor Mallard: One bill divided.

—one bill divided into three parts, thank you—exemplifies the problem that we are not looking at the whole of New Zealand’s security intelligence agencies. We should have been debating through the Committee of the whole House the role of the SIS within intelligence agencies. There is no SIS bill among the three—

The CHAIRPERSON (Eric Roy): Order! Come back to the debate.

No, I am very much on the debate in that I am searching among the three divided bills here for some reference to the Security Intelligence Service, which is referenced within what will now be the Government Communications Security Bureau Amendment Act, the first of the three divided bills. The first of the three divided bills has to talk about the SIS because it is one of the organisations—

💬 Hon Trevor Mallard: Why only divide into three?

That is where I am getting to. It is one of the organisations that the Government Communications Security Bureau (GCSB) is now committed to assisting within this divided bill. That is the problem.

Dividing up the GCSB bill into three new, separate bills, as this Supplementary Order Paper does, highlights the problem that many New Zealanders are raising, which is that they want to have trust and confidence in our security intelligence agencies, but that trust and confidence has been undermined through the actions of the Minister responsible for the GCSB, John Key, over the Kim Dotcom affair and over Ian Fletcher. When it comes to creating some new piece of legislation, here was an opportunity for the Government to bring together all of the intelligence agencies under one piece of legislation that New Zealanders could play a part in shaping. If there was a review, they would have been able to play a part in shaping that legislation in asking what is the New Zealand way when it comes to security intelligence. What is the kind of legislation that would sum up the values of New Zealanders about privacy, about security, and about accountability of Government?

What I fear is that in these three divided bills we highlight the ad hoc, divided, and in some ways incompetent approach that the current Government has towards security intelligence. In particular I want to highlight the two bills that do not actually have the same title as the one that we have been debating all the way through over the last couple of weeks. They are what will now be the Inspector-General of Intelligence and Security Amendment Act and the Intelligence and Security Committee Amendment Act. They highlight the fact that both of the organisations covered by these two divided bills, the Inspector-General of Intelligence and Security and the committee, actually have oversight over a wider set—[Bell rung] He has given the call to me. They actually have a wider ambit than just the GCSB. So the Inspector-General of Intelligence and Security, under the new approach that is being proposed in what was previously the single bill, now has a wider ambit.

The Intelligence and Security Committee, which is the subject of the third of the divided bills, now not only looks at the SIS, which it always has done, but has an expanded role in providing opportunities for the public to hear and see the reports of the SIS and the GCSB. So in many ways that committee is an even further example of the divided and ad hoc nature of the way in which this Government looks after intelligence and security. The proposed Intelligence and Security Committee Amendment Act, as divided, really does highlight for me why we should not be looking at three divided bills. We should have been looking at a single piece of legislation that actually enabled Parliament to be able to say that we now understand how our security agencies sit together.

In addition to the SIS—if we want to take the approach laid out in this Supplementary Order Paper, there actually should be six or seven bills. There should be a bill to cover the SIS, there should be a bill to cover the GCSB, there should be the Intelligence and Security Committee bill and the inspector-general bill, but there should also be a bill covering the police and the Organised and Financial Crime Agency of New Zealand, because under new section 8C, inserted by clause 6, of the bill that we have been debating, they are regarded as security and intelligence agencies. There should be another bill covering the Defence Force and defence intelligence, which are also named in the legislation. So if we were to take this approach in this Supplementary Order Paper to its logical extension, there should be six or seven bills, and that, frankly, would be—

The CHAIRPERSON (Eric Roy): Order! I have been listening very carefully, and I believe that the member is trying to develop the argument that the bill should have been expanded to cover other issues. The question is whether or not this bill should be divided.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. With respect, and taking some care because of the discussions earlier in the day, I think you have it wrong. What the member on his feet was saying was that these issues are already in this legislation, not that there should be more legislation to cover them. These are already in the legislation, and if it was properly organised, then it would be divided into more than three bills.

The CHAIRPERSON (Eric Roy): Well, then, I misinterpreted the member. I shall watch him very closely.

And I would expect nothing less. Mr Mallard’s interpretation is correct. The point I am trying to highlight is that there are a number of agencies within the security and intelligence structure in New Zealand that are mentioned in the legislation—

💬 Hon Trevor Mallard: Whose roles have been changed.

—yes—whose roles have been changed or, in fact, have never actually been even covered in legislation before in many cases. So what this Supplementary Order Paper does is say: “Well, there are three subjects here, and we’re going to divide them up into three.” There are actually more than three subjects. There are six or seven subjects. That is one point I am trying to make.

The second point that I am trying to make is that what is needed here is one piece of legislation that can give New Zealanders confidence about the arrangements for security and intelligence in New Zealand. All that dividing this bill into three does—as this Supplementary Order Paper does—is highlight to New Zealanders the incoherent, ad hoc, divided nature of the way the Government is approaching security and intelligence measures.

I would favour a Supplementary Order Paper that actually looked at a quite different approach—one that actually came off the back of a review of all of that architecture of security and intelligence, that gave New Zealanders the chance to have their say about what that would look like, and that was done on the basis of a review that had at its core the values New Zealanders hold dear, which are privacy, security, transparency, and accountability.

💬 Hon Trevor Mallard: They’d all be in one bill.

Exactly. They would be part of one single bill. So I cannot share Mr Mallard’s enthusiasm that he had for the potential division of this bill. I think I will have convinced Mr Mallard now that it is not possible. The Government side of this debate has not taken a single substantive call today. I predict it will not on this Supplementary Order Paper, which is its own. I strongly believe that this Supplementary Order Paper should not pass, because all it does is highlight the mistakes that the Government has made and the cover-ups that it has attempted through this GCSB process. I do not believe that this Supplementary Order Paper deserves the support of the Committee.

I move, That the question be now put.

We are debating Supplementary Order Paper 307. Interestingly, the debate on the question of whether or not we should adopt the amendments on Supplementary Order Paper 307 began before this Supplementary Order Paper was tabled, so we started the debate before we even really knew what the question was. I think people who are watching the passage of this Government Communications Security Bureau and Related Legislation Amendment Bill who are fearful for what this legislation does to the principles underpinning our democracy in New Zealand will question how it could possibly be that this Government would propose that we should debate something in Parliament when we have not even had the question put down on the Table before us. That is a fundamentally anti-democratic act, the kind that people have come to expect from this Government.

But I want people who are listening to this to understand that in all of these things it is always a question of whether it is a cock-up or a conspiracy. I think there is no doubt that this is a cock-up. The Government had only a week of adjournment to prepare this Supplementary Order Paper, so it is understandable that it was not able to get it on the Table in time for the debate this evening. It is a 1½ page Supplementary Order Paper. I am sure it took a considerable amount of work to add the words to the template, which there will be for these types of Supplementary Order Papers because they occur so often. A whole week of adjournment, on top of all the other time that we have been debating this legislation, probably was too short a time for this dysfunctional and disorganised Government to prepare the words for this Supplementary Order Paper in time for us to begin debating them.

As to the substance of the Supplementary Order Paper, we have heard two different views from this side of the Chamber. One was from Trevor Mallard, which was that this is a form—

💬 Hon Trevor Mallard: Open, liberal, and prepared to be convinced.

Yes, I have always thought that Trevor Mallard is open, liberal, and prepared to be convinced. He takes the harm reduction approach, and says that this is a Supplementary Order Paper that will make a bad bill slightly better because it will be slightly less incoherent than it currently is. On the other hand, I heard a convincing argument, I have to say, from Grant Robertson that what we should do is vote against this bill. Trevor Mallard has also been convinced that we should vote against this bill.

What we really ought to be doing, the ideal, is that we should not be debating the separation of this bill into three bills. We should actually be debating one of two singular pieces of legislation. The first that we could be debating is a piece of legislation that initiates an inquiry into our surveillance agencies. The Inquiries Bill, I understand, is now a matter of urgency for the Government, even though it has been languishing on the Order Paper—

💬 Hon Trevor Mallard: Since 2008.

—since 2008. But post the Fonterra scandal it is now a matter of urgency for the Government. If the Inquiries Bill had been passed, we would not need a separate piece of legislation to establish an inquiry into our surveillance agencies, but it has not been, so we are debating this. That would be the first piece of legislation we could—[Interruption] There could be a royal commission. It is a matter of debate.

💬 Hon Trevor Mallard: It’s all nonsense.

Trevor Mallard says it is nonsense. I am sure he will get up and offer a different point of view.

The other way we could go is to have a single piece of legislation that would be the result of that inquiry and that would be legislation that establishes our surveillance agencies and sets the parameters for our surveillance agencies in the 21st century. Let us face it: 1976, which was the last time our surveillance agencies were comprehensively reviewed from a first-principles basis, was an awfully long time ago. It was an awfully long time ago. I was minus 2 when that was carried out.

💬 Hon Trevor Mallard: I was resident upstairs during the debate.

Well, you can tell us some more about that as well, Mr Mallard. But, anyway, it was a long time ago, and it is fair to say that the environment in which information can be gathered has changed a bit since 1976. So we should be debating a single piece of legislation that establishes the parameters for our surveillance agencies in the 21st century.

The alternative way to go would be to split this piece of legislation—ad hoc, inconsistent, and ill-fit for purpose as it is—into the six or seven pieces of legislation that would accurately reflect the number of different agencies and the number of different Acts that it is amending. As it is, what we have, again—

I move, That the question be now put.

I rise to speak to the motion to divide the Government Communications Security Bureau and Related Legislation Amendment Bill. I would like to acknowledge Bob Leonard of the Anti-Bases Campaign as well when I talk of this division. Bob passed away exactly a week ago. He was a founder of the Anti-Bases Campaign and fought vigorously against the Waihopai spy base—

The CHAIRPERSON (Eric Roy): Order! This has got nothing to do with Supplementary Order Paper 307. The member should be debating whether or not the bill is to be divided.

In terms of the division, I think that, with respect, we should be able to talk of someone who has been closely involved with this whole issue of the Government Communications Security Bureau, and this division is just another aspect of it. I think it is very disrespectful to someone who passed away just a week ago—

Order! This speech is terminated.

I move, That the question be now put.

I move, That the report be adopted.