Norman Russel: Government Communications Security Bureau and Related Legislation Amendment Bill — Referral to Government Administration Committee In CommitteeText is incorporated into the Bound VolumeNorman Russel: Government Communications Security Bureau and Related Legislation Amendment Bill — Referral to Government Administration Committee In Committee[Sitting date: 08 August 2013. Volume:692;Page:12548. Text is incorporated into the Bound Volume.]Dr RUSSEL NORMAN (Co-Leader—Green):I rise on behalf of the Green Party to speak about Part 2 of the Government Communications Security Bureau and Related Legislation Amendment Bill. This part is particularly related to the role of the Inspector-General of Intelligence and Security. I agree with Mr Grant Robertson that there are some improvements in terms of the role of the Inspector-General of Intelligence and Security in this part but none the less it remains fundamentally flawed. The improvements are around essentially resourcing which is the deputy role that has been introduced and increasing the pool of candidates who can be appointed to this position. There are some good changes.However I think there is a fundamental structural problem that we are dealing with here and it relates to Part 1. In Part 1 of this bill we effectively gave dramatically increased powers to the Government Communications Security Bureau (GCSB) and the SIS. In Part 2 we are saying the Inspector-General of Intelligence and Security will be the watchdog as to whether those powers are exercised properly.The problem is that the Inspector-General of Intelligence and Security even with the best intention in the world may have to sign off things as lawful and acceptable that they consider to be gross breaches of human rights and gross breaches of privacy because they have been made lawful by the changes made to Part 1 of the bill. That is I think the fundamental conceit in the changes made around the oversight provided by the Inspector-General of Intelligence and Security because if on the one hand you allow the GCSB to have significantly increased powers—and as we saw they are very focused on New Zealanders those increased powers under Part 1 that this bill provides. When the inspector-general is facing applications by the GCSB to do certain things and is trying to provide oversight to make sure that the GCSB is acting lawfully—of course the GCSB has acted unlawfully over 80 times previously. When the GCSB makes those applications or does those actions and the inspector-general is meant to provide oversight the inspector-general will have little choice but to say that actually it is lawful—that it is lawful to engage in mass surveillance of New Zealanders because the law says the GCSB can do it. I think that is the fundamental problem in the way that this is actually so flawed. The inspector-general will be forced to agree forced to sign off and give some kind of stamp of approval to actions that they may otherwise consider to be ethically wrong.The other part of this that I want to talk about is the much better framework that we could have had introduced at this point which was essentially to make the Inspector-General of Intelligence and Security an Officer of Parliament rather than a creature of the executive—appointed by the executive if you like. I was very pleased to hear Mr Robertson’s contribution on that point because the Greens have argued for many years that the Inspector-General of Intelligence and Security should be an Officer of Parliament. We have had disagreements with Labour about that in the past. I am very pleased to hear Mr Robertson now say that he personally at least agrees with that position. I think that offers hope that in the future we can actually make the inspector-general position an Officer of Parliament.Running alongside that of course would be the need to report to a select committee of Parliament. That refers to Part 3 which is to make the Intelligence and Security Committee rather than a statutory committee a regular select committee of Parliament. So the much more proper way I think to provide oversight of these kinds of agencies is to have an inspector-general who is an Officer of Parliament independent of the executive and so able to provide that kind of independent oversight of what the executive is doing because they report to this House—to Parliament—to this branch of Government rather than having the very close relationship with the executive that the inspector-general has. Then running alongside that I think also that you would have tohave the Intelligence and Security Committee established as a committee of Parliament and operating under the regular Standing Orders rather than a statutory committee with no powers.The other part I would just like to mention here that I think is important and is probably not really understood is the constraints that will be on what the Inspector-General of Intelligence and Security can say. That relates to the amendments in clause 34 to section 25 of the Inspector-General of Intelligence and Security Act which is about reports. What the changes here mean is that if the Inspector-General of Intelligence and Security finds something that they want to tell the public about they will have significant constraints on their ability to tell the public about what they have found. As it says here in new section 25(8)(b) in these kinds of reports “any matter quoted or summarised in the report”—by the inspector-general—“must be given a security classification not less than the security classification of the matter quoted or summarised.”What this means is that the GCSB can for example categorise a piece of information at a very high level of security which means that very few people are allowed to see it. They might call it top secret for example. Then if the inspector-general finds something remiss around this and tries to introduce it into one of their reports that report will not be able to be published to the general public because the same security classification that the GCSB applies will have to be carried over to the inspector-general’s report. This seems like a minor technical issue but it is a very significant constraint on the ability of the inspector-general to talk to the public of New Zealand. If the inspector-general’s role is to provide a check on what the GCSB is doing to provide a watchdog function a key part of that watchdog is that they should be able to communicate to the people of New Zealand. That will be one of their key powers—the ability to write these reports. They will not be able to make these points because if the material that they are quoting from or even summarising is classified as top secret it cannot go in the public version of the inspector-general’s report. The inspector-general will be constrained by the very agency that they are meant to be the watchdog over in their ability to report what that agency is doing by these sections. I think that is one of the basic problems with this.I just want to also touch briefly on a couple of amendments—or Supplementary Order Papers as they are called in the technical language of Parliament—to this part that I have moved. One is set out on Supplementary Order Paper 311 and that is simply to add privacy as one of the policies that the inspector-general can order. We think that privacy has been a critical issue in a lot of these debates around the GCSB and other issues related to it and so we think it is important that privacy be added to the list of the policies that the inspector-general can order as a key part of the legislation.The other part of it—and this is Supplementary Order Paper 312—is an amendment to clause 34. What we are trying to do is make sure that when the inspector-general reports to the Minister about an issue as currently happens the Minister then responds to that. But the Minister does not have to provide that response to the Intelligence and Security Committee. So the Intelligence and Security Committee will never see what the Minister’s response is to the inspector-general’s report. It may but it is not a requirement that it does. So essentially we are replacing “may” with “must”. The Minister must provide their response to an inspector-general’s report to the Intelligence and Security Committee.I think this logically follows. If we want the Intelligence and Security Committee to provide the kind of oversight we are asking it to provide over these agencies then it needs to see what reports the inspector-general is writing about the GCSB and other agencies—the SIS in particular. The Intelligence and Security Committee needs to beable to see those reports but it also needs to be able to see the Minister’s response to those reports. How can the Intelligence and Security Committee provide the oversight that we are asking it to provide if it does not know necessarily what the inspector-general is saying but particularly if it does not know how the Minister is responding to any concerns that the inspector-general is raising? The Intelligence and Security Committee is very constrained in its ability to inquire into for example the operational matters of the GCSB and the SIS which means that the Intelligence and Security Committee is very limited and quite reliant on the Inspector-General of Intelligence and Security to provide a watchdog function over the operational matters of the GCSB and also the SIS.If the inspector-general’s reports on those operational matters are not going to the Intelligence and Security Committee and if the Minister’s response to the concerns being raised by the inspector-general are not going to the Intelligence and Security Committee how on earth can that committee be confident that it is providing sufficient oversight of the operations of the GCSB when it does not even know necessarily what is going on in the communication between the inspector-general and the Minister or in this case the Prime Minister and the Prime Minister’s responses to the concerns that the inspector-general is raising?That is why I have moved the amendment set out on Supplementary Order Paper 312 to make sure that the Intelligence and Security Committee gets access to those particular reports. In general I think it is important to make the point on the oversight issue that so many of the positions—in fact all of the positions—that provide the oversight are appointed essentially by the Prime Minister. There is a fundamental problem of oversight. Even the Intelligence and Security Committee has a Government majority—the Prime Minister and its allies. There is I think a fundamental lack of oversight here.