GCSB Bill 2nd reading – Chris Finlayson


Second Reading

Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the Minister responsible for the GCSB:

I move, That the Government Communications Security Bureau and Related Legislation Amendment Bill be now read a second time. There has been a great deal of scrutiny and debate over this Government Communications Security Bureau and Related Legislation Amendment Bill. There has been a lot of uninformed commentary.

There have been a number of examples of the great and the good, the well meaning but impressionable being misled by ill-founded fearmongering.

So, at the outset, let me make it quite clear: this legislation is not a revolution in the way New Zealand conducts its intelligence operations and national security. It is not a case of expanding the borders of some intelligence empire. This is about fixing legislation that at its best is not fit for purpose and, at worst, is broken.

Under this bill, New Zealanders can be confident that our intelligence agencies are acting in accordance with the rule of law.

The bill sets out definitively what it is our intelligence agency can and cannot do under the law. There are no grey areas. There are no loopholes. This is very important because of the status of national security in a democratic society. National security is vital for maintaining the freedoms and the way of life that we hold dear.

It is vital for keeping us safe and free from harm. But national security tools, if turned inwards and not subject to strict controls, can erode that way of life and threaten the freedom of individuals. National security legislation must not have loopholes that can be exploited by those who would threaten our security, who would threaten loss of life through terrorism or criminal activity.

But, equally, national security legislation must not have grey areas of uncertainty or doubtful interpretation that allow the State gradually to extend its activities and creep into ordinary people’s private lives like some kind of growing shadow.

The bill strikes the right balance. It makes amendments to three Acts, with the three main objectives being to clarify what the Government Communications Security Bureau (GCSB) can and cannot do, to update the legal framework in response to the changing security environment, and to strengthen the oversight of our intelligence agencies.

Labour’s 2003 Government Communications Security Bureau Act sought to codify and make transparent existing practices of the then Government Communications Security Bureau. It failed. The Kitteridge report found that the 2003 legislation is not, and probably never was, fit for purpose.

The bureau currently has three core functions: cyber-security and information assurance, foreign intelligence, and cooperation and assistance to other entities. Those three functions are retained under this legislation.

For an organisation possessing the powers the GCSB does, an unclear legal framework is simply unacceptable, so the relationship between these three functions has been set out in much more explicit terms than in the existing legislation. Between 2003 and 2011 there were 88 instances of surveillance that highlighted difficulties of interpretation.

There is a grey area in the current law, and it arises because of a lack of clarity over the legitimate activities of the GCSB of those three different functions. That grey area disappears under this legislation.

On the matter of assistance and cooperation, Labour’s 2003 Act said that the GCSB could assist other public agencies in New Zealand in the performance of their functions and also to prevent and detect serious crime.

It authorised explicitly the surveillance of foreign organisations and individuals to obtain foreign intelligence—organisations and individuals who in some cases may make contact with New Zealand citizens and residents.

But the law also said, in apparent contradiction, that the GCSB must not intercept the communications of New Zealand citizens or permanent residents. In hindsight, this was a recipe for confusion.

Parliament had intended something straightforward, that the GCSB should target foreign nationals only when gathering intelligence under its second function, and, in addition, the GCSB should also be available to assist agencies such as the police and the SIS in their legitimate and warranted domestic activities.

But the wording was contradictory and unclear. The GCSB acted according to its internal advice, to fill this grey area. That advice was in keeping with the intention of those who passed the Government Communications Security Bureau Act in 2003, but it may or may not have been justified by the words of the statute itself.

Ambiguous law that leads to secluded decision-making on a case by case basis is unsatisfactory, so we are taking these steps to overhaul the legislation and make it fit for its original purpose.

The responsible thing for this Parliament to do is to clarify the Act to specify which agencies the GCSB may assist, and to what extent, and to remove ambiguity and increase oversight from outside the agency.

The question of oversight is a very important one generally, not only in relation to the GCSB. Former GCSB head Sir Bruce Ferguson recently implied that he wished there had been greater oversight of orders he issued as head of the Defence Force, classifying some journalists as subversives.

This week he acknowledged that he had never thought of journalists as the enemy, and expressed his disappointment that no one had since overturned the orders he could not remember making. It is a reminder that memory can fail us.

Some commentators, including Sir Bruce, have opined that the questions around the GCSB represent something new about the way intelligence operates in this country. That is simply untrue.

The problems of drafting and legislative interpretation date back to the passage of Helen Clark’s 2003 legislation.

This bill is not revolutionary. It is not an aggressive expansion of State powers. Its purpose is to provide concrete rules that leave less room for uncertainty. This is evident from the treatment of metadata in the bill. There has been much talk of metadata recently. It has become something of a buzzword.

Rt Hon Winston Peters: This is quite sad. This is quite sad.

Hon CHRISTOPHER FINLAYSON: But there is no magic in metadata, I say to Mr Peters. In this bill, metadata is treated as any other communication.

This bill authorises the interception of certain communications. Communication does not differentiate between data and metadata for the reason pointed out by a number of submitters: we do not have a clear definition of metadata.

The type and number of ways in which data can be described and indexed—that is, the categories of metadata—are growing all the time. If we included a definition, then we would risk leaving loopholes as new technologies emerge or new business systems are developed.

We do not want loopholes that expose New Zealanders to unnecessary risks because our legislation cannot keep up with technology. Nor do we want amorphous gaps in the legislation that could allow agencies to exceed the powers intended for them, by incrementally extending definitions by analogy.

This bill takes into account national security and privacy. The issue is not national security or privacy; it is both. National security is about protecting our citizens and the rights and the freedoms we value. The legislation is sensitive to those rights and freedoms.

In conclusion, the bill has been subject to extensive discussion and debate, which on occasion have obscured this very important issue.

The bill before us today incorporates 19 recommendations endorsed by the Intelligence and Security Committee—and it is important to say that they reflect public submissions—and there will be further changes, which have been flagged publicly, in a Supplementary Order Paper.

As I say, this bill does not represent an extension of powers but a clarification. I commend the bill to the House.

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1 Comment

  1. Darryl

     /  2nd August 2013

    Well spoken by Chris Finlayson. He is an Excellent Member of Parliament, who doesn’t include emotive crap, but tells it how it is.


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