English Bill: Urgent Debates — Government Communications Security Bureau—Review of ComplianceText is incorporated into the Bound VolumeEnglish Bill: Urgent Debates — Government Communications Security Bureau—Review of Compliance[Sitting date: 10 April 2013. Volume:689;Page:9217. Text is incorporated into the Bound Volume.]Hon BILL ENGLISH (Deputy Prime Minister): Well my colleague asks a very good question: how was Sir Bruce Ferguson appointed to the head of the Defence Force and then head of the Government Communications Security Bureau? I would ask the gossipy member for Wellington Central Grant Robertson to—Hon Phil Goff: By proper procedure—that’s how. Proper procedure.Hon BILL ENGLISH: And proper procedure was applied in the case of Mr Ian Fletcher. Of course the appointment of the head of the Government Communications Security Bureau is the Prime Minister’s appointment—the appointment of the head of the Government Communications Security Bureau is the Prime Minister’s appointment.Grant Robertson: Why wasn’t that the process Bill? Why wasn’t that the process?Hon BILL ENGLISH: OK so despite Labour peddling gossip it got nowhere on the issue of the appointment of Mr Fletcher as the head of the Government Communications Security Bureau. In the end it is the Prime Minister’s appointment and as the Kitteridge report now makes plain the job of sorting out the mess left by the previous Labour Government with its lazy approach to intelligence is a very substantial and complex job. It is a great thing for New Zealand that we have a Prime Minister who has been willing to take it on—has been willing to take it on.The last Prime Minister clearly took no interest in the legality of the intelligence agencies. But worse than that the previous Labour Government passed a piece of legislation that was a result of the kind of shonky political deals that have upset many of the institutions in this country. The reason that we ended up with a provision in the Government Communications Security Bureau Act that said the bureau should not spy on New Zealanders paraphrasing it is that that is the only way that the Labour-led coalition of the time could pass the law. It was a last-minute addition thrown in by the Prime Minister of the time to get the votes in the House. That is how it happened. The fact that that provision was not properly understood was assumed to codify existing practice has led to the circumstances in which we find ourselves today.Let us just pull back a bit about the context in which these discussions have been going on. This is not an issue as the member for Wellington Central said about “whether or not New Zealanders can be spied on.” The answer to that question is that they can and they are. With a warrant and following the proper procedures they can be put under surveillance by the New Zealand Security Intelligence Service. That was the case still is the case and always will be the case because we have national security interests that are quite real because there are real threats out there not imagined threats and because we need agencies that have the capability of dealing with those threats. Some are external and sometimes those threats are New Zealand citizens. That is why the New Zealand Security Intelligence Service can put New Zealanders under surveillance.So the issue is not as the Labour Party is trying to couch it whether the Prime Minister cares whether New Zealanders can be under surveillance. They can. Every Prime Minister New Zealand has ever had has endorsed that position. The issue here is whether the New Zealand Security Intelligence Service can use the Government Communications Security Bureau to carry out some of that function. The reason historically that it has used the Government Communications Security Bureau is that the bureau has technology no one else has that it uses for surveillance particularly of foreign nationals which is the bureau’s territory and it contributes to international intelligence gathering. That is the question and the assumption has always been that it can.Up until 2003 the Government Communications Security Bureau had no legal framework in which it was operating. That is why it was a good thing that the previous Government set out to put a legal framework in place for the operation of that agency to ensure its legality and its constitutional position. After the passage of that Act in 2003 the assumption remained in place that the New Zealand Security Intelligence Service could use the Government Communications Security Bureau as an agent in its surveillance activities. When the issue came into question of whether that was legal an issue raised by the Inspector-General of Intelligence and Security the clear advice from the agencies was that it was legal—it was legal.At this stage can I just make sure that we disentangle a couple of different sorts of legal questions related to the activities of the Government Communications Security Bureau. The issue of Kim Dotcom was primarily and still remains an issue around hisstatus as a citizen. It turns out he is a New Zealander under one piece of legislation and not a New Zealander under another piece of legislation.Louise Upston: Bizarre. Bizarre.Hon BILL ENGLISH: It seems bizarre but this is what happens in legislation. The issue had not really been tested until his case came along. That is one set of issues.And then there is a set of issues about whether the activities of the Government Communications Security Bureau itself are actually legal. What the report has uncovered was a culture of low levels of compliance within the bureau. It was a culture where people were not aware of their statutory obligations not as aware as they needed to be of the legal processes that they should follow and it was an organisation that had been operating to legal advice that is now held to be doubtful. It was legal advice of experienced legal counsel who worked in the area for years—decades in fact—and it turns out that there are questions about that legal advice.The role of the Prime Minister as the Minister in charge of these intelligence agencies has been to bring these issues to resolution. The Prime Minister initiated the Kitteridge report. I think any parliamentarian who has read that report would acknowledge that for an independent report it is actually hard-hitting. This is not the report of someone who does not understand the issues or has tried to soft soak them. This is probably the toughest report on the intelligence agencies that we have seen in a long long time. So the Prime Minister has raised those issues and initiated the Kitteridge report.The question has arisen around the timing of actions. I go back to what I said in question time: no one in this process can act on what they do not know before they know it. Of course it would a reasonable expectation that if the head of the Government Communications Security Bureau had been handed advice that said those activities are not legal and they should be stopped then those activities would have stopped when that advice turned up. As it happened that kind of advice turned up around the time of October when the bureau actually did put a stop to a range of activities because of doubt about the legality of those activities. Again I would stress that even as of today it is still not clear whether the activities we are referring to here are illegal or not illegal. It is still not clear. The Prime Minister and the agency itself have acted with reasonably expected caution as the situation has developed and the understanding of the legal situation has developed.Of course now that the Kitteridge report is here it is easy to see an environment in which the Government Communications Security Bureau was operating that was not apparent then. Now that there have been 6 months or 9 months of legal discussion it is easy to sound knowledgable about the legal issues. But if we think of the context in which the Prime Minister was first informed about these matters it amounted to the inspector-general making a suggestion to the Prime Minister that there were questions about the legality of some of the operations of the Government Communications Security Bureau. The initial advice in response to those questions was that the operations were legal and of course any Prime Minister would take that position very seriously. The member from the Labour Opposition is simply wrong to assert that the Prime Minister did not act with the seriousness every New Zealander would expect of a Prime Minister dealing with these significant national security issues.When it became significant enough that there was doubt over the legality of the operations of the Government Communications Security Bureau those operations were stopped and then the Kitteridge report was put in place. That report has yielded the information that going back to 2003—that is from the passage of the Government Communications Security Bureau Act—there are 88 cases in which the question arises. It is not the case that the newspaper headlines describe that accurately. There are 88cases in which the question arises. Of course by today’s measure it is quite possible there are cases before 2003 where the question would arise about whether the bureau was acting consistent with the expectations—one cannot say the law because at the time there was no law. The process from the middle part of last year has been thorough and it has been suitably cautious in that when doubt arose activities have been stopped. Independent oversight has been employed both through the Kitteridge report and the inspector-general who oversees these intelligence agencies.The next step in this process of course is the resolution of these issues because let us be clear: we need functional intelligence agencies. We need the ability to monitor the activities that and the people who could be a threat to our national security—of that there is no doubt. But we need those agencies to be updated in the first place because of the massive changes in technology since their legislation was put in place even as recently as 2003. We need the agencies to be updated but we also need the agencies themselves to be reformed. These are agencies with less transparency than your average Government department. They are not subject to competition or contestability. If they are left alone for a long time they can end up as is shown in the Kitteridge report as agencies that have lost the awareness of their need to be compliant.The Government is moving to expose all of these issues. The Prime Minister has worked extensively over recent months to bring forward resolutions to these issues and we would expect that over the next couple of months both this House and the Intelligence and Security Committee will have the opportunity to debate fully the means by which this situation that has arisen can be corrected and more important than that the steps that this Parliament should take in order to upgrade and modernise our system of national security.