Govt. departments, Parliamentary Services, DPMC could use GCSB?

The GCSB Amendment Bill could potentially allow the GCSB to be used to spy for any government department, Parliamentary Services, the Clerk of the House and possibly the Department of the Prime Minister and Cabinet.

This could be done at the request of “the Minister” – presumably usually the Prime Minister with the agreement of the Governor General.

The current head of the GCSB was headhunted by the Prime Minister who had been childhood friends with his brother.

The Governor General has a military background and has also headed the GCSB.

The head of Parliamentary Services has a Special Investigations and Military background.

And what the GCSB does happens in secret. We are just supposed to trust them all.

Too few people with too many connections are involved. The current PM and department heads may be completely trustworthy, but there is no guarantee of that in the future once legislation is set in place.

From the Bill:

8C Co-operation with other entities to facilitate their functions

(1) This function of the Bureau is to cooperate with, and provide advice and assistance to, the following for the purpose of facilitating the performance of their functions:

(a) the New Zealand Police; and
(b) the New Zealand Defence Force; and
(c) the New Zealand Security Intelligence Service; and
(d) any department (within the meaning of the Public Finance Act (1989) specified for the purposes of this section by the Governor-General by Order in Council made on the recommendation of the Minister)

Bill 109-1 [PDF 484k]

(a), (b) and (c) cover what some thought the previous Act allowed but this was questioned, hence the amendment.

(d) is wideranging – from the Public Finance Act 1989:

department—
(a) means—
(i) a department or instrument of the Government or any branch or division of the Government; or
(ii) the Office of the Clerk of the House of Representatives; or
(iii) the Parliamentary Service; but

(b) does not include—
(i) a body corporate or other legal entity that has the power to contract; or
(ii) an Office of Parliament

Office of Parliament means the Parliamentary Commissioner for the Environment (and that Commissioner’soffice), the Office of Ombudsmen, and the Auditor-General

Considering allowing any Government department, the Clerk of the House or Parliamentary Services to use the GCSB to spy for them is alarming.

I don’t wish to question the integrity of the people in current positions, but:

  • the General Manager of Parliamentary Services was in the NZ Army for 20 years and was the Manager of the Special Investigations Branch, Royal New Zealand Military Police.
  • the current Governor General  was Chief of the New Zealand Defence Force and for a short time was the Director of the GCSB.

The GCSB is known to have close connections with the New Zealand Defence Force and has often been headed by ex-military staff – except now, the current head was effectively recruited by “the Minister”, Prime Minister Key who he has known since childhood.

There is nothing to raise any doubts about integrity of those involved, but many of the main players have some sort of connections or common backgrounds.

I think it is essential that there is a more independent component in the issuing of warrants to spy.

I seriously question the need to be able to allow Government departments and the Parliamentary Service to use the GCSB for spying.

We know that Parliamentary Services has already overreached in obtaining security data of an MP and a journalist in the Henry inquiry. The Prime Minister has said that his word was enough authorisation for David Henry to use questionable data collection, and Key even admitted it went too far when swipe card data was accessed.

And one thing that isn’t clear here – the Department of the Prime Minister and Cabinet (DPMC) is not specified, but it is a department that is not specifically excluded. Would it be possible for the DPMC to get the GCSB to spy for it?

If this law amendment is passed it won’t just apply now, it will also give extraordinary potential powers to future Prime Ministers and department heads.

We need much better assurances of checks and balances – set into law.

 

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4 Comments

  1. James Bond

     /  14th July 2013

    Heavens I hope Peter doesn’t get advice from you on this stuff Pete you seem to have lost all perspective.

    Current GCSB Act 2003 section 8(1)(e) allows agency arrangements with any public authority or entity in New Zealand. The essential point is that any intrusive stuff is done under the explicit statutory power of that authority or entity under their own statutes.

    What Key is proposing limits these agency arrangements to a specified list and he proposes to create a public mechanism (i.e. Order in Council) to add to it. The Order in Council is published; there will be official advice surrounding sending it to the the G-G. Note this is more restrictive that the current Act. Key’s proposal is to creating a public legislative process to add to the list .

    The underlying principle that any such listed organisation or organisation added by way of Order in Council must have the explicit statutory power for any intrusive stuff remains and is actually strengthened by the PM’s Bill.

    So why don’t you ask Parliamentary Service and the Office of Clerk what explicit statutory power they have to spy? They will tell you none. Problem solved. No conspiracy.

    Guarding the guardians is a tad easier when we are focusing on actual risks to freedom not imaginary ones.

    Reply
    • I don’t advise anyone on this. Who do you advise? Or who is advising you?

      If there is no intention for certain departments to be included then they should be specifically excluded.

      Or better, departments should be openly and specifically included if there is any intention to ever let them use the GCSB. :Any department’ is appalling legislation.

      If the law is too loose it raises risks of being misused or used as a loophole further down the track.

      The problem with the current legislation is that it lacks precision. The proposed amendment is lax.

      Reply
  2. James Bond

     /  14th July 2013

    The proposed drafting isn’t lax at all what is proposed is much tighter than the existing provisions. Key is right you are wrong Q.

    As to whether one might want to include Parliamentary Service as capable of being added there is very good reason for it. PS might be taking over the provision of ministerial computers and Cabinet might be shifting to electronic distribution of Cabinet Papers. I am sorry Q but why would seek to exclude them – it is not as if there is a prima-facie national security interest.

    And likewise as you suggesting the GCSB don’t assist PS and the Clerk to ensure that legislators computers are secure and don’t have software installed on them that allows unauthorised remote access?

    However none of this alters the fact the PS and the Clerk don’t have the statutory power to spy. Nothing in the proposed Bill gives them that power.

    Reply
  3. robertguyton

     /  15th July 2013

    ” The current PM and department heads may be completely trustworthy…”

    You must be joking, Pete!

    Aren’t you?

    Reply

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