Government Communications Security Bureau and Related Legislation Amendment Bill — Referral to Government Administration Committee In CommitteeText is incorporated into the Bound VolumeGovernment Communications Security Bureau and Related Legislation Amendment Bill — Referral to Government Administration Committee In Committee[Sitting date: 08 August 2013. Volume:692;Page:12532. Text is incorporated into the Bound Volume.]Government Communications Security Bureau and Related Legislation Amendment BillReferral to Government Administration CommitteeHon TREVOR MALLARD (Labour—Hutt South):I moveThat the Government Communications Security Bureau and Related Legislation Amendment Bill be discharged to the Government Administration Committee for further consideration including hearing the Police the SIS the Ministry of Defence and the Government Communications Security Bureau.A party vote was called for on the questionThat the motion be agreed to.Ayes59New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Noes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Motion not agreed to.In CommitteeDebate resumed from 6 August.Part 1 Amendments to Government Communications Security Bureau Act 2003(continued )Hon MARYAN STREET (Labour):Kia orana. Before I was so rudely interrupted in my speech on this Government Communications Security Bureau and Related Legislation Amendment Bill by the House inconsiderately rising at 10 p.m. on Tuesday I was wanting to speak to clause 6 in Part 1 of this bill and speak particularly to the new section 8C and the amendment put forward by the Hon Peter Dunne in Supplementary Order Paper 308. At that time I said it is clear we are meant to be eternally grateful for this amendment but I want to introduce some material to the Committee this afternoon that goes to the point that that is the very least that should be changed about the bill so to be grateful to Peter Dunne for his Supplementary Order Paper is somewhat stretching credibility.New section 8C was the bit that contained the part that said that the function of the Government Communications Security Bureau (GCSB) was “to co-operate with and provide advice and assistance to” basically any department—any Government department. It included and specified the New Zealand Police the Defence Force the Security Intelligence Service and any department made within the meaning of the Public Finance Act.I want to labour this for a moment because the point about that is that it has to be one of the most offensive clauses in this piece of legislation. Yes Peter Dunne’s amendment deletes the last part of that section. But the reason it is offensive is that it allows by an Order in Council made on the recommendation of the Minister responsible for the GCSB—so not by any legislative prescription not by listing here in the legislation which departments might be affected. Was it going to be the Ministry of Health? Was it going to be the Ministry of Social Development? Was it going to include Work and Income? Instead of listing those things it simply said that the Minister by an Order in Council would be able to name any department at all that the GCSB could come in and assist—any department at all.The Regulations Review Committee applied itself to this particular part. Later after my speech I intend to table the advice of the Regulations Review Committee which has just been made public this morning but will not have gone up on the parliamentary website yet I do not think.The point about this is that it is an extreme version of a “Henry VIII” power. It does not matter what the history of that is although people can probably work it out. Henry VIII did not just have trouble with his wives or with the Pope; he also had trouble with Parliament. The point is that it gives the Minister the right to nominate a department without any check or balance from Parliament at all and gives the GCSB the right to go in and give its assistance to anybody. This on the advice of the Regulations Review Committee should have been deleted anyway. At the very least the statutory committeeconsidering this bill should have gone back because there was no requirement for the Minister to consult appropriately prior to making an Order in Council. There were no objective tests set down to specify the criteria of which the Minister must be satisfied prior to recommending the making of an Order in Council. There was no reference to other pieces of legislation such as section 50 of the Search and Surveillance Act 2012 which provided some objective tests against which their abilities and their functions may be discharged.The point about this is that it was the worst of all of the bad parts of this bill. This was something that put no prohibition on the Minister or the Government telling the GCSB to exercise its functions on any department at any time for any purpose. They did not have to meet criteria. There was nothing that had to be consulted on. Peter Dunne wants us to believe that he has done us a favour with his Supplementary Order Paper 308 with his amendment that deletes that. I would say to that member that I would be grateful if it were not for the next bit in the legislation.The next bit in clause 6 is new section 8C(2) which says this: “To avoid doubt the Bureau may perform its function under subsection (1) …”—if Peter Dunne’s amendment is passed and we will support it because this was a reprehensible piece of the legislation to start with—“even though the advice and assistance might involve the exercise of powers by or the sharing of the capabilities of the Bureau that the Bureau is not or could not be authorised to exercise or share in the performance of its other functions.” In other words it is going to have the ability to do what it wants anyway so all of Mr Dunne’s amendment goes up in a puff of smoke. He has not seen it through to new section 8C(2)(c) and realised that the GCSB can give its advice and assistance even though that might involve the exercising of powers that it is not authorised to have.The members opposite have made a huge song and dance about what oversight there is going to be of the GCSB. This gives the lie to that assertion. There is no oversight. There is no check and balance on the GCSB. I would say to the Hon Peter Dunne who probably would have wanted his political epitaph to be “Minister of Common Sense” that it is now likely that his political epitaph when it comes—either voluntarily or by force—will be “Willing Buyer Willing Seller”. As soon as that man uttered those words he gave up the right to strut around this Parliament as some kind of conscience and gatekeeper for this Parliament. The self-righteous prancing of this man knows no bounds. Yet when it comes down to the words on the page he trips at the last hurdle. He trips at the last hurdle because he is not prepared to see it through.What he did was the bleeding obvious. All his amendment does is provide what should have happened anyway and what would have happened if the advice of the Regulations Review Committee had been taken into account. So he does it by amendment but does not look ahead. He thinks about how he can persuade people that he is still this man of common sense and utmost integrity which has allowed him for years to stride the middle way in this Parliament. There is another word for people who stride a middle way—“fence-sitter” is one of them. He has made a virtue of his ability to work with anybody who wants to work with him. On this occasion his epitaph will be “Willing Buyer Willing Seller” and that is the end of that man’s reputation.There have been a number of biblical allusions referred to in the course of this debate. There has been some reference to Judas Iscariot and 30 pieces of silver. I would like to make another biblical allusion and that is that I wonder whether the deal that Peter Dunne has got is Katrina Shanks’ head on a platter.KANWALJIT SINGH BAKSHI (National):I moveThat the question be now put .CHRIS HIPKINS (Labour—Rimutaka):I am happy to have the first of what I hope will be many calls on the Government Communications Security Bureau and Related Legislation Amendment Bill. I want to go immediately to one of the detailedclauses in this legislation. For members who are following along new section 8CA(3)(c) in clause 6 is the clause that I intend to talk about. That clause states that “The Director must take all reasonable steps to ensure that—(c) the Bureau does not take any action for the purpose of furthering or harming the interests of any political party in New Zealand.”I think that actually is a very important clause. It is a clause that I support. But I want to consider how much faith New Zealanders can have in that clause actually being followed given that the director that that clause refers to is a childhood friend of John Key was appointed without proper process—hand-picked by John Key to do the job without the proper process that would normally go around that—and reports directly to that same person John Key. How can New Zealanders have confidence that he will discharge his responsibilities in a politically impartial and neutral manner?Let us make no bones about it. These Government members are very very happy to exercise the power of the State when it comes to protecting their own personal privacy and their own information but they are not so concerned when it comes to the privacy and the personal information of every other New Zealander.So let us consider how this bill came about in the first place. In the matter of the Kim Dotcom fiasco one of John Banks’ biggest campaign contributors was being illegally spied on by the Government Communications Security Bureau and when that became apparent we all know what happened—absolute chaos reigned. This legislation is now being brought into the House because the Government acted illegally with regard to something that has become a very very political matter.Then let us consider that the very same Mr Banks sat down for a cup of tea with John Key—which we all now know about; the whole country knows about—and John Key did not hesitate to use every avenue available to him to ensure that the contents of that conversation did not get out. When it became apparent that that conversation had been recorded he did not hesitate to send the police in to raid the offices of the media—to raid the offices of the media. So we know that any pious statements we hear from the Government now about protecting the fourth estate are pretty hollow because when the media held information that might have been damaging to John Key he did not hesitate to have their offices raided in an attempt to try to get that information back. And if the allegations that we heard yesterday are correct he also had the police accessing the phone records or attempting to access the phone records of someone else a private citizen—Grant Robertson: A modest citizen.CHRIS HIPKINS: —a very modest private citizen—who may have had information relevant to that particular investigation.I think that means that New Zealanders cannot have any confidence that this clause that I am debating now which requires the bureau to act in a way that is effectively politically neutral and not to act to the benefit or the detriment of any political party in New Zealand will necessarily be adhered to. If we move to that same section 8CA and look at subsection (1)—the very first clause in that particular section—it states: “In performing its functions under this Act the Bureau acts—(a) in accordance with New Zealand law and all human rights standards recognised by New Zealand law except to the extent that they are in relation to national security modified by an enactment:”.I thought that that was very interesting because we have got some very good laws around human rights in New Zealand—the Human Rights Act the Privacy Act and so on—and I wanted to get a good analysis of how this proposed law change might impact on those. We rely as members of Parliament on a thing called the regulatory impact statement to give us that information. The regulatory impact statement will almost always contain an analysis of the implications on the Human Rights Act for exampleof a proposed law change. So I read the regulatory impact analysis that was placed on the Table earlier today and it does not do that. It does not go through and give us details about how this legislation will impact on the New Zealand Human Rights Act.So I think that is really important because if we come back to this clause it says that “In performing its functions under this Act the Bureau [must act] … in accordance with New Zealand law and all human rights standards recognised by New Zealand law”. I think it is very reasonable to ask to what extent are those very laws and standards infringed upon—MIKE SABIN (National—Northland):I moveThat the question be now put .Hon MARYAN STREET (Labour):At the end of my speech before I wished to table the advice of the Regulations Review Committee to the chairperson of the Intelligence and Security Committee spelling out the inadequacy of the legislation in its first draft.The CHAIRPERSON (H V Ross Robertson): Can I just ask the member has it been publicly released?Hon MARYAN STREET (Labour):It was released by the Regulations Review Committee which I chair only this morning and it may not yet by this stage have gone up on the parliamentary website—I do not know that. So no it has not been in the public domain previously. It is relevant to this debate and I would like to table it so that members can have a look at it for themselves.The CHAIRPERSON (H V Ross Robertson): Well if the member has released it then she is perfectly entitled to seek leave. The member has sought leave. Any objection? Maybe the member—Chris Hipkins: Leave to table.The CHAIRPERSON (H V Ross Robertson): Leave has been sought—Hon Maryan Street: Leave to table the Regulations Review Committee advice to the Intelligence and Security Committee—Hon Christopher Finlayson: No that’s already in the public domain.Hon Maryan Street: It has not been.The CHAIRPERSON (H V Ross Robertson): It has been objected to.BRENDAN HORAN (Independent):“Dulce et Decorumest”. It is fitting and proper that every good New Zealander opposes Part 1 of this Government Communications Security Bureau and Related Legislation Amendment Bill because what it is doing is legalising John Key’s practice of having his secret police spy on law-abiding New Zealanders. Where are the hopes and dreams of our forefathers who died and who fought in world wars for future generations in the hope that we may live in a democratic society? Where are our hopes and dreams that we will live in a democratic society when this Government would allow secret police to spy on law-abiding New Zealanders?Where is democracy? New Zealand is turning into a police State. We need only have a look at theDominion Postthis morning. The call has gone up by the police: “No drinking—no drinking.” After a certain time that is it. What has ever happened to education? What has ever happened to this Government actually? Instead of cutting money from the police we should be putting money into the police so that we do not have these Draconian-type measures. This is a step back in time. We have seen the SS we have seen the KGB and now we have John Key’s secret spy police.People jump to conclusions. Words can be twisted and actions can be misinterpreted and guided with evil intent. As someone who has been spied on as someone who has had their telephone records leaked and used with evil and libellous intent I feel I am qualified—more than qualified—to speak on this and I can confirm that it is a violation in the extreme.Actually even if we deviate a little and we look at what has happened with Fonterra where that has been twisted and turned has anybody in the world died? No. Has anybody in the world been violently ill? No. Fonterra was open in its administration. It found something that could possibly cause an illness and it let the world know. But those who would twist and turn it have twisted and turned it and now we have a situation where New Zealand’s reputation is at stake and all New Zealanders want to have a say. I look forward to when we have good informed debate on this. Let us take a look at what happens to Fonterra in a few weeks’ time and I hope sanity prevails.When I think about democratic rights—all over New Zealand in other areas this Government is stomping and trampling on New Zealanders’ democratic rights. We need look no further than snapper. Here we have a police State and the Government is going to say that no New Zealanders cannot even have the democratic right to feed their family. It is absolutely appalling.I turn now to Supplementary Order Paper 327 which is in my name and which amends clause 6 within Part 1. Although the bill is odious I will propose and support measures that might strengthen it. As reported from the Intelligence and Security Committee a new section 8CA would be inserted by clause 6 “to provide for a set of principles that would underpin the performance of the Bureau’s functions.” It sounds good but the wording is essentially window dressing.So to add some meaning to the wording two amendments are needed. The first adds a new subsection (1)(e) which says that the Government Communications Security Bureau (GCSB) must act “subject to effective thorough and genuine oversight.” At first blush Government members might think that that is little different from the existing subsection (1)(d) which says that the GCSB must act “in a manner that facilitates … oversight.” but there is a difference. The existing wording that it must act “in a manner that facilitates … oversight.” does not require that there will actually be oversight. My new subsection (1)(e) does add that requirement so I think it is appropriate to seek the support of the Committee for that.The second change is to turn round the subsequent subsection (2) of section 8CA as reported from the statutory committee. This says that the principles underpinning the performance of the Bureau’s functions do not “impose particular duties on … the Bureau” and its people. [Bell rung ]Hon TREVOR MALLARD (Labour—Hutt South):I raise a point of order Mr Chairperson. Because I know that you are going to be asked a particular question now I would just like to seek an assurance from you and to point out to you that I would accept that the first 3½ minutes of the last speech were not strictly on Part 1 of the bill.I would like to point out that the member Brendan Horan has not had the opportunity to debate Fonterra and other issues because he does not get an opportunity in the urgent debates or the general debate. I ask that you give a little more leniency for irrelevancy in this particular case. If you look at it carefully after the last two substantive contributions which were both on the technical detail of the bill and adding new material I think it would not be fair to the Committee or other members if because a member who does not normally get an opportunity to contribute on the other matters slightly muddies the waters we lost the opportunity to continue the strong direct substantive and important debate.TIM MACINDOE (Junior Whip—National):The member Brendan Horan is an Independent member. He has had 5 minutes which is more than you would normally expect for somebody in his particular circumstances. It is up to him to speak directly to the bill from the outset and the Committee should never set the precedent of allowing a person to continue for longer because the first 3½ minutes of his speech were irrelevant.Hon TREVOR MALLARD (Labour—Hutt South):I was in no way advocating for a further 5 minutes for the member—in fact I think I would almost plead for it not to happen—but the point I was making was that other members should not be penalised by his irrelevancy.TIM MACINDOE (Junior Whip—National):Opposition members have now had on their own more than 2 hours debating this particular part and that is notwithstanding any particular calls on this side of the Chamber. It has already been 2 and a bit hours.The CHAIRPERSON (H V Ross Robertson): I thank the members for their contribution. I had considered whether I should call the member again but I decided not to.TIM MACINDOE (Junior Whip—National):I moveThat the question be now put .The CHAIRPERSON (H V Ross Robertson): I am very tempted but I am going to hear someone who has not spoken in this debate yet.Dr MEGAN WOODS (Labour—Wigram):I am very pleased. I think there is still a lot of ground that needs to be covered in relation to Part 1 of this Government Communications Security Bureau and Related Legislation Amendment Bill. In particular I want to speak to new section 8CA(1) inserted by clause 6 in Part 1 which comes under the heading “Principles underpinning performance of Bureau’s functions”.There are many broad themes that many members of this Committee have traversed about the bill and I think these have been covered well. I think the reason for Labour’s opposition to this bill—that the Government has not made the case for expanding the powers of the Government Communications Security Bureau (GCSB) and it does not give New Zealanders the confidence that there is proper oversight of the GCSB to ensure that their privacy is protected—is a case that my colleagues have begun to make very well. I am sure there is much more that we need to add to this.If I can return to new section 8CA(1)(a) it states that “In performing its functions under this Act the Bureau acts—(a) in accordance with New Zealand law and all human rights standards recognised by New Zealand law except to the extent that they are in relation to national security modified by an enactment:”. So it is this issue of human rights and particularly the submission from the Human Rights Commission that I want to spend some time speaking to in this call on Part 1 of the bill.The Human Rights Commission did take an unusual step in exercising its statutory power to issue a report directly to the Prime Minister because of the seriousness of the issue raised in the bill. John Key may have rubbished the submission and he tried to downplay its significance by saying that the Human Rights Commission did not get its submission in on time but this is more significant than a submission and it should not be brushed off like that. That is why members on this side feel that under Part 1 of this bill and particularly in relation to proposed section 8CA(1)(a) the issue raised by the Human Rights Commission deserves a full debate in this Committee and needs to be considered with a great deal of seriousness. So if we look at new section 8CA(1) this incorporates the principles underpinning the performance of the bureau’s functions so that they are the same as those in the New Zealand Security Intelligence Service Act and include acting impartially.When the Human Rights Commission did issue its report to the Prime Minister we on this side of the Chamber think that it was a very thorough and very thoughtful submission that was put to the Prime Minister on the issue of human rights which is covered in this clause under Part 1. The Human Rights Commission informed the Prime Minister that it considered that “what is proposed in this GCSB Bill is too wide-reaching. It does not provide adequate oversight and makes inadequate provision for ensuring appropriate transparency and accountability of those who administer thelegislation. It does not provide for a legal regime containing sufficient safeguards against abuse of power and to facilitate a proportional approach.”The primary recommendation of what the Human Rights Commission had to say in this report that it issued to the Prime Minister is “that a full and independent inquiry into New Zealand’s intelligence services be undertaken as soon as possible.” This primary recommendation was supported by five further recommendations.This report and these concerns were issued to the Prime Minister because one of the principles underpinning the performance of the bureau’s actions should be according to this bill the human rights of New Zealanders and these should be in accordance with all New Zealand law. When we have the serious case of the Human Rights Commission writing to the Prime Minister to say this is not so then we have concern.This is the reason for Labour’s Supplementary Order Paper 305 in this area. David Shearer has introduced Supplementary Order Paper 305 to provide that an independent inquiry into the purposes and functions of the bureau take place and will take place within 6 months of the bill’s passing and that the bill currently being passed will expire within 1 year. This goes some way to address many of the human rights concerns that have been raised by the Human Rights Commission and these are concerns that we do need to take full note of.MARK MITCHELL (National—Rodney):I moveThat the question be now put .The CHAIRPERSON (H V Ross Robertson): The question is that the question be now put.Hon Trevor Mallard: I raise a point of order Mr Chairperson.The CHAIRPERSON (H V Ross Robertson): Well I am putting the question.Hon Trevor Mallard: Well it goes to the question of whether a member who has previously had a call on this bill can—Hon Member: He can’t. He can’t.Hon Trevor Mallard: No under the rules he can move a closure but only if he can get the call. There are a number of members who have not yet had a call on this particular clause who are calling and have precedence over that member for the call. I accept that if he gets the call properly he can move it but my submission to you is that because he has done it before he cannot get the call again before members who have not yet spoken on it.The CHAIRPERSON (H V Ross Robertson): Can I just say to the member that whenever a question is being put to the House the interruption of business is deferred until the question is determined. So the question is that the question be now put.Hon Trevor Mallard: I raise a point of order Mr Chairperson. I just want to make absolutely clear in relation to that last point of order that I took my point of order before you had completed putting the question. You had not put the question and I ask you to rule on the substance of my point of order—that is that you cannot give priority to a member who has already spoken for the call over a member who has not other than when it is the Minister.Tim Macindoe: The Standing Orders and Speakers’ rulings make it very clear that it is the Chairman’s call and the Chairman’s decision. You have made your ruling Mr Chair and I invite you now to uphold it.The CHAIRPERSON (H V Ross Robertson): Well I understand of course that I can call anyone whom I so choose. In this case I called the honourable member Mark Mitchell. There the matter rests.A party vote was called for on the questionThat the question be now put.Ayes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Noes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 306 in the name of the Rt Hon John Key to Part 1 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Noes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 305 in the name of David Shearer to Part 1 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Noes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendment set out on Supplementary Order Paper 316 in the name of Dr Russel Norman to clause 5 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.The question was put that the amendments set out on Supplementary Order Paper 328 in the name of Dr Russel Norman to the proposed amendments set out on Supplementary Order Paper 308 in the name of the Hon Peter Dunne to clause 9 be agreed to.A party vote was called for on the questionThat the amendments to the amendments be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments to the amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 308 in the name of the Hon Peter Dunne to Part 1 be agreed to.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 317 in the name of Dr Russel Norman to clause 6 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 314 in the name of Dr Russel Norman to clause 6 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 315 in the name of Dr Russel Norman to clause 6 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes23Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes98New Zealand National 59; New Zealand Labour 34;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 320 in the name of Dr Russel Norman to clause 6 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the following amendment in the name of the Hon David Parker to clause 6 be agreed to:delete new section 8B(1)(b).A party votewas called for on the questionThat the amendment be agreed to.Ayes49New Zealand Labour 34; Green Party 14; Mana 1.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Abstentions7New Zealand First 7.Amendment not agreed to.The question was put that the amendment set out on Supplementary Order Paper 319 in the name of Dr Russel Norman to clause 6 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.The question was put that the amendments set out on Supplementary Order Paper 327 in the name of Brendan Horan to clause 6 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.The question was put that the amendments set out on Supplementary Order Papers 309 and 318 in the name of Dr Russel Norman to clause 12 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 323 in the name of the Rt Hon Winston Peters to clause 14 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendments set out on Supplementary Order Paper 322 in the name of Dr Russel Norman to clause 15 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.The question was put that the amendment set out on Supplementary Order Paper 321 in the name of Dr Russel Norman to clause 24 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes50New Zealand Labour 34; Green Party 14; Mana 1; Independent: Horan.Noes71New Zealand National 59; New Zealand First 7;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.A party vote was called for on the questionThat Part 1 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Noes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Part 1 as amended agreed to.Part 2 Amendments to Inspector-General of Intelligence and Security Act 1996Hon CHRISTOPHER FINLAYSON (Attorney-General):I thought it might be helpful to the Committee—I will just let Mr Tisch into the Chair and thank you for your great service Mr Chairperson.The CHAIRPERSON (Lindsay Tisch): I’m here.Hon CHRISTOPHER FINLAYSON: And I hope I get 15 extra seconds—oh you can start me again if you like.I thought it may be helpful to the Committee if I take honourable members through the key aspects of the proposed amendments in Part 2 which deals with the Inspector-General of Intelligence and Security Act 1996. These proposed amendments are designed to increase oversight and to as it were beef up the office of Inspector-General of Intelligence and Security. Under section 5 of the current legislation the inspector-general must be a retired High Court judge and the term of the appointment of that person is 3 years which is renewable indefinitely. The only statutory provision in this legislation is the inspector-general who has the ability to hire staff necessary to carry out the functions of the office—and that is a reference to section 10.The bill proposes a number of major changes. The first is that the requirement to be a retired High Court judge is removed and the aim of that is to provide a greater pool of candidates and experience to fill the role. The term does however remain at 3 years but an individual can serve only two terms. There is a new statutory position of Deputy Inspector-General of Intelligence and Security. That person will have all the powers of the inspector-general but subject to their control and it is created to bolster the capacity of the office—a bit like I guess the Deputy Judicial Conduct Commissioner. What the bill does is recognise the expanded role of the office and help the inspector-general and indeed the Government will be making greater resources available to the inspector-general to carry out the proposed expanded role of the office.We then come to the functions of the inspector-general. Under the current legislation the inspector-general has wide-ranging functions to review the policies and the work of the intelligence agencies but I note that own-motion reviews under the 1996 Act are subject to the concurrence of the Minister. This changes quite significantly because the requirement for ministerial concurrence is removed and this will give greater autonomy and independence to the inspector-general. The bill also adds—importantly without limiting the general nature of the functions of the office—a function of auditing compliance policies and procedures. Very very importantly I refer to clause 31 which will amend section 11(1)(da) to provide the ability to conduct or carry out spot audits.The next issue concerns consultation with other oversight bodies. The inspector-general at the present time can communicate with bodies such as the Privacy Commissioner the Human Rights Commission and the Auditor-General when conducting inquiries. Importantly under the bill the Independent Police Conduct Authority is added to the list of agencies with whom the inspector-general can communicate.I want now to refer to reports of the inspector-general. Under the current legislation the inspector-general prepares an annual report and a report on each inquiry that he or she undertakes. There are limitations on the publication of reports due to the security classification. Under the proposed changes the inspector-general’s annual report must certify the extent to which each agency’s compliance systems are sound and the inspector-general will also be required to make an unclassified version of their inquiry reports publicly available on an internet site that will be maintained for the inspector-general. The aim is greater transparency and greater public scrutiny.The final point is the advisory panel. The only statutory provision in the 1996 legislation as I said is the inspector-general. As I said that person has the ability to hire staff necessary to carry out the functions of the role which are currently contained in section 11 of the Act. The bill will insert a provision for an advisory panel to be a sounding board for the inspector-general. The board consists of the inspector-general and two independent members. That is actually a matter that is referred to in Mr Dunne’s Supplementary Order Paper. I refer to it now because I think it is a very good suggestion a very sound suggestion and one that the Government is very happy to support.So in general terms what we are doing here is addressing issues of transparency and oversight and also increasing the resources of the office to reflect the increased heavy responsibilities of the inspector-general.GRANT ROBERTSON (Deputy Leader—Labour):Part 2 of the Government Communications Security Bureau and Related Legislation Amendment Bill is significantly better than Part 1 which we were just addressing. Part 1 grossly—Hon Phil Goff: Everything is relative.GRANT ROBERTSON: Exactly everything is very relative Mr Goff. Part 1 grossly expanded the powers of the Government Communications Security Bureau (GCSB) without adequate oversight mechanisms and in a way that many New Zealanders are very uncomfortable with. What Part 2 does is make some changes and improvements to the oversight of the GCSB and for that we are grateful.What I want to do in this call and subsequent calls is work through the way in which these changes may be useful but in the view of the Labour Party do not go far enough to provide New Zealanders with the assurance that the role of the Inspector-General of Intelligence and Security is a valuable and worthy one that they can have confidence in and one that will give a GCSB that New Zealanders can have trust and faith in and know the role is looked after. In principle that is because it remains a reactive role. It remains largely a reactive role and a reactive role that still keeps the role of the Prime Minister—or the Minister responsible for the GCSB who has always been the Prime Minister—right at the centre with control over virtually every aspect of the operation of the GCSB from governance effectively down to management.What I want to do at the outset is say that we support the notion of the creation of the role of the Deputy Inspector-General of Intelligence and Security. We think this will be very useful. It was clearly highlighted in the Kim Dotcom case that JusticeNeazor was stretched when it came to trying to deal with the issues. When it then came to the illegal spying on 88 New Zealanders the capabilities of the inspector-general were well and truly stretched. We do support Part 2 in so far as it creates that deputy inspector-general role and also in terms of opening up the way in which complaints can be made and dealt with by the inspector-general which is contained as the Attorney-General has just told us in clause 31 which amends section 11 of the Inspector-General of Intelligence and Security Act. Those are useful changes.But there are severe limitations around how valuable those changes will be and that is what I want to work through now. If we look at the proposed new section 5 in clause29 we see straight away where some of the problems start. Proposed new section 5(2) states: “The Inspector-General and Deputy Inspector-General must be appointed … on the recommendation of the Prime Minister following consultation with the Intelligence and Security Committee.” Once again I just want to recap where we have the Prime Minister and the different roles that the Prime Minister has in relation to the GCSB. We have the Prime Minister appointing the Director of the Government Communications Security Bureau. We have already seen with the appointment of Ian Fletcher how the Prime Minister’s role in that process can be abused when the Prime Minister cuts across a process that is already in place calls his friend up tells his friend to speak to the chief executive of the Prime Minister’s department who is on the appointment panel and only one person gets interviewed for that role which is the Prime Minister’s friend and then that person gets appointed.Hon Annette King: And the head of the Prime Minister’s department.GRANT ROBERTSON: That is right the head of the Prime Minister’s department as Annette King reminds me met with that person while that process was under way. That is our concern about that. The Prime Minister is appointing the head of the GCSB the Prime Minister is chairing the oversight committee of the GCSB and here now in clause 29 we have the Prime Minister responsible for appointing the inspector-general and the deputy inspector-general.What we on this side of the Chamber are saying is that when we look at the way in which the inspector-general’s function is set up we need to move with the times. This legislation was created in 1996. If we fast forward to 2013 people’s concerns about the role of security and intelligence agencies and the kind of information that is being collected mean that this watchdog role that we are talking about in Part 2 is more important than ever. We actually do have to recognise that things are different than they were in 1996. The public have a higher expectation of the kind of oversight and watchdog role that will be in place.What I venture to suggest is that what should be here in this part is the role of Parliament in this—the role of Parliament. We do have some change to that as under amended section 11 in clause 31 a member of Parliament can initiate an inquiry. But the whole process of the appointment of the inspector-general is one that I venture to suggest should end up being an Officer of Parliament - type role in the long term. That would be the kind of issue that would be raised in the review that the Labour Party has been proposing. My personal view is that we should be moving that role more towards an Officer of Parliament position. I think that is an important step we could take to restore confidence in the role of inspector-general. That is not what is here.We have some improvement here in the new section 5 in clause 29 which creates a deputy inspector-general role but we on this side of the Chamber believe that this role of inspector-general should be considered for being a role of an Officer of Parliament. We know from the roles that the other Officers of Parliament play—the Parliamentary Commissioner for the Environment the Auditor-General and the Ombudsmen—that those roles are one step removed from the day-to-day process of the Government. That is what will restore confidence in the GCSB and in the inspector-general’s role—if New Zealanders know that that person is working effectively on behalf of parliamentarians who work on behalf of them. That is the direction the Labour Party would like to see considered here. Unfortunately this clause does not go that far. Although we would like to be able to support all of the changes that are in this bill in the end when the bill does not give the oversight and the watchdog role the power that we believe it needs then we will not be able to support that aspect of the bill.I want to go on to talk a little about the proposed new sections 15A to 15F in new clause 33A around the advisory panel. Again it is a useful step forward that there willnow be a wider group of people looking into the way that the GCSB does its work and supporting the role of the inspector-general but again it is a very low-key role. It is about providing advice. New section 15B(1) states: “The function of the advisory panel is to provide advice to the Inspector-General.” It can do that on its own initiative and that is good but again that does not serve to increase New Zealanders’ confidence in the way in which the advisory panel would work.If we are going to have an advisory panel like this we on this side of the Chamber would like to see it have a stronger role. I actually think that if we got the officer role of the inspector-general correct if we created it as an Officer of Parliament then the role of the advisory panel would not need to be significantly changed from the way it is here in the bill. But in the absence of that change then I think the role of the advisory panel needs to be stronger. I want to pay respect to JusticeNeazor but it was quite clear in the process around Kim Dotcom that when JusticeNeazor did his report into what happened in the Kim Dotcom case there were major inaccuracies in the report that he provided. I do not believe he was in a position to play the watchdog role that New Zealanders would expect.This fundamentally comes back to the way in which the GCSB goes about its work. Although we all understand that an intelligence agency has to act in secret for a large part of what it does the confidence-building measures that sit round that have to therefore be even more robust. If we are going to allow the agency to have the powers that it has even under the current legislation let alone the extended powers then we need the robust oversight and watchdog roles to be there. We simply do not believe that the advisory panel as it is constituted here will do that. I am sure that the people appointed to it will be excellent people. One of them has to be a lawyer. Mr Finlayson in future times looking for a new career may choose to take on that role—Hon Annette King: Very soon.GRANT ROBERTSON: Very soon perhaps after November next year he may choose to take on that role. So there will be people on this panel I am sure who will be learned people—Hon Trevor Mallard: It would probably be good to appoint him.GRANT ROBERTSON: Yes. But if they are not given the teeth to actually have proper oversight of the inspector-general then on this side of the Chamber we simply do not believe that that is a sufficient role.Under the new section 15E as set out in clause 33A of the bill the advisory panel is provided with clerical and secretarial services by the Department of the Prime Minister and Cabinet. It would be fair to say that if the Department of the Prime Minister and Cabinet is providing secretarial services—if the Henry inquiry is anything to go by—then this clause should not pass because the role that the Department of the Prime Minister and Cabinet played in the Henry inquiry was to ask directly for the records of journalists and to invoke the Prime Minister’s office in doing that.We have to be careful if we pass this clause into law as we would be giving the Department of the Prime Minister and Cabinet a role with an advisory panel that is meant to be separate from executive Government. I think it is actually quite important if we are going to set up an advisory panel like this one that it has its own staffing and it has its own ability to play its role. Otherwise the perception in the mind of the public will be reinforced that the Prime Minister who has a large degree of control of these agencies will also be able to control the advisory panel. So my view here is that although there are some useful changes that are being brought in by Part 2 they simply do not go far enough and they will not restore the confidence of New Zealanders in the GCSB or in the inspector-general.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.Hon PHIL GOFF (Labour—Mt Roskill):Part 2 of this bill the Government Communications Security Bureau and Related Legislation Amendment Bill deals with the role and the powers of the Inspector-General of Intelligence and Security. The Attorney-General rightfully pointed out that this is about oversight for the powers of our secret intelligence agencies. He then proceeded to give assurances that this oversight was adequate which I think most New Zealanders and certainly members on this side of the Chamber found absolutely underwhelming.The bill moves cautiously and marginally in the right direction but the changes are cautious; they are marginal. When you scratch below the surface you see that they do not give you any assurance at all that there will be oversight. The problem is this. When we decide that we want intelligence agencies they are given enormous powers that no other body in New Zealand possesses. They can do things that for anybody else would be breaking the law. They can intrude into privacy. They can exercise those powers without any public accountability—without any knowledge by this Parliament or by the wider public through the media.When you give powers to an organisation and you do not create accountability then you create the basis for the abuse of powers. We are not simply being conspiratorial around this. We have seen examples in New Zealand and outside New Zealand where this happens. The enormous breach of powers by the National Security Agency in the United States was revealed only because a whistleblower Edward Snowden actually made it public. Otherwise Americans would not know that literally hundreds of thousands of them—none of them or very few of them with connections with any terrorist-type organisation—are under surveillance.We saw that breach of power by the Government Communications Headquarters in the United Kingdom and we have seen the breach of power here. This is what this billis about. It was initiated by the breach of power by the Government Communications Security Bureau (GCSB) illegally spying on Kim Dotcom. That is what it is about. We are seeing the abuses of power even in the corridors of this building where people are having their swipe cards their phone records and their emails improperly spied upon and passed across to people who should not have them.Let us not pretend that the issue of accountability and the need for safeguards is not a real issue. It certainly is. I support the appointment of a deputy inspector-general but an inspector-general and a deputy inspector-general will hardly be adequate to do the work that needs to be done with the expanded powers of the GCSB. I understand from informal discussions that there will be an office of assistance provided to them but where is the guarantee of that? Where we have got Officers of Parliament we have a degree of independence that the inspector-general does not have. But even where we have got Officers of Parliament like the Ombudsmen we see them starved of resources so that they have a huge backlog of work and they cannot do the job this Parliament set for them. It is a deliberate action by the Government to starve them of resources because the Government likes to exercise power and not be curbed in the exercising of that power. That is the nature of this Government in particular. So we need to be sure that there is adequate resourcing for the inspector-general and we have seen and heard no assurances of that.The functions of the inspector-general are expanded and again I approve of that. They can inquire on their own motion—the Attorney-General made a big point of that did he not—without the concurrence of the Minister. But when you look at the bill that was introduced to the House what did it say? It said that he or she could start inquiries with the concurrence of the Minister. So the natural instinct of Mr Key and the National Government was to have an Inspector-General who was so hobbled that they could not do anything and it was only through submissions to the select committee and pressure from the Opposition that Government members were so embarrassed that they removed that. So I welcome the fact Attorney-General that you removed that but do not come into this Chamber pretending that you think it is good that he can be independent when the legislation that you brought in said that he could not be independent. You have had to do a U-turn and we welcome that U-turn as we so often welcome the U-turns that happen only when they are forced on the Government.It is good that the inspector-general can advise on the impact of the activities on individuals. It is good that the inspector-general can report on the propriety of the activities of the agencies. But again can the inspector-general do this? Does he have the independence to do it? And is the nature of the inspector-general going to be such that that person has the strength of character that he or she will do that? That comes to the point about appointments. Actually however it is dressed up “appointed by the Governor-General”—we all know what that means: the Prime Minister tells the Governor-General to do it—means the Prime Minister makes the recommendation. He may consult with the Intelligence and Security Committee but we know that this Prime Minister hardly has that committee meeting. It meets a couple of times a year. I was on it for 3 years. He treated it with absolute contempt. So let us not be mistaken—this Prime Minister will appoint on his own viewpoint the inspector-general.We have seen an abuse of those appointments by the Prime Minister before have we not? That is another scandal that hit. The very chief executive officer of the GCSB was a mate of the Prime Minister. Did he own up to that right up front? Not on your life. He had to have it dragged out of him and then he said: “I haven’t seen him for years.” Then we found out that he had been having dinner with him quite regularly. So how can the public have confidence in the integrity of the Prime Minister when he abuses that appointment process for the very head of the GCSB that this legislation regulates? Inthe process that he followed there were no interviews. He nominated him. He pointed him out. The poor State Services Commissioner was totally overridden and was finally forced to come out and say that he did not approve of the abusive process of the Prime Minister.So Attorney-General you are telling us to have confidence in an inspector-general who will be appointed almost solely by the Prime Minister when we have seen this Prime Minister John Key abuse that process already. That is why I say Attorney-General that your assurances will not carry much weight with the people of New Zealand and certainly no weight with the people on this side of the Chamber.Then we have an advisory panel. That is exactly the same thing. It has two people. One of them is a lawyer. Well we should be reassured by that. Is not the Minister of Justice a lawyer? Does she not always follow due process? Bain case—yeah! I fear that this advisory panel is nothing more than a toothless tiger. In fact it is toothless; it is not even a tiger.There is nothing in this legislation that suggests that that advisory panel can be effective and again it is appointed by the Prime Minister who we have just heard has time and again abused the process of appointment. He has abused the process of appointment so much that he appointed the chairman of his own electorate committee to a position governing broadcasting where one of the conditions of appointment should be independence and impartiality. He appointed a dyed-in-the-wool National Party person—the chairman of his own electorate committee—to a position where he is meant to be independent in terms of how broadcasting operates.That is another example of this Prime Minister undermining and detracting from the power of the fourth estate and the Attorney-General wants us to accept his assurances. I am sorry Mr Finlayson those assurances are not backed up by track records. They are not backed up by legislation that will give this Committee confidence. You see the only curb on the power of the security agencies is effectively the Prime Minister. The Prime Minister on one hand seems so uninterested in his job that he does not even know when his own GCSB had broken the law. He said that for 7 months he did not know that the GCSB had broken the law. Can you believe that? He did not know when Bill English moved a ministerial certificate denying access to the courts of knowledge that the GCSB was even involved. That was the Prime Minister’s own deputy and actually the Acting Prime Minister.So we have a Prime Minister who first of all either does not know or does not tell the truth about not knowing. But regardless of who the Prime Minister is you cannot simply have one person required to hold the safeguards against abusive power by the security agencies. And it is dumb to have the Prime Minister do that because it is his Government that is abusing the powers so what sort of safeguard will he be? In the United States the President has two independent committees. One is the House of Representatives and the other is the Senate chaired often by members of the other party. There is no adequate oversight here. There are no safeguards that will satisfy New Zealanders.SUE MORONEY (Labour):This is my first opportunity to take a call on the Government Communications Security Bureau and Related Legislation Amendment Bill. In speaking on Part 2 which is supposed to be about transparency and oversight I do want to remind the Committee of the context in which we are debating transparency and oversight. I want to make it clear from the outset that although there are some improvements in Part 2 nothing is going to satisfy the Opposition’s call for a full inquiry into the reasons why we need this bill in this shape and form at all. So that needs to be said at the outset. Nothing in Part 2 is going to take away from the very valid call coming from the Labour Party to ensure that there is a review and that we actually havea full inquiry—a full inquiry—into the reasons so that we know why we are doing what we are doing.Why we are so nervous about this—why New Zealanders are so nervous about this bill—and why Part 2 needs to get it right is that the Government Communications Security Bureau (GCSB) unlike the SIS is an intelligence security agency that actually communicates with other countries’ intelligence security agencies. I think that that is a point that has sometimes been lost in the debate. This is different from the SIS. It is different from the way in which the police operate. It is different from the way in which other entities operate. New Zealanders are particularly nervous about it because it communicates with other countries’ intelligence agencies as well.I think New Zealanders are right to be nervous about that because they are still reeling from seeing our country’s laws being sold off to Warner Bros. They are concerned about the influence of big corporations and other countries on this Government’s performance and on this Government’s decisions and on our national security. So I think they are right to be concerned about it in that context.What Part 2 does is attempt to give some assurances to the public of some independence some oversight and some transparency of what has been to date a completelyuntransparent process—if there is such a word—in a situation where New Zealanders and the Opposition have had to drag every single piece of information out of the Prime Minister while he has kicked and screamed and tried to stop us from knowing what has been going on. It is in that context that Part 2 becomes so important.So the Minister in charge who is in most instances the Prime Minister himself or herself gets to actually choose the Inspector-General and the Deputy Inspector-General of Intelligence and Security and that is right and that is proper. But I think as my colleague the Hon Phil Goff just traversed in his speech in this debate New Zealanders have lost faith in the ability of this particular Prime Minister to make independent appointments and to make appointments that are in the best interests of the nation and in the best interests of the country rather than in the best interests of whom he happens to be chummy with or who he has been chummy with in the past.I think probably that if we look at the current Prime Minister one of the most difficult choices he might have is whether to appoint a childhood friend to this role whether to choose a former member of Parliament from the National Party for this role or whether to choose Amy Adams’ sister or HekiaParata’s husband. He will have to choose one person only for the important role of Inspector-General of Intelligence and Security. I think that is something that New Zealanders are becoming increasingly worried about. What is being seen is appointments made particularly to positions that ought to be independent such as families commissioner roles—those types of roles that are actually designed to keep the Government and call it to account—and those most recent appointments by that Government opposite have been completely without transparency and without independence. I think that is a major concern.One of the ways in which Part 2 attempts to overcome that concern is to appoint an advisory panel but I agree with some of my colleagues who have spoken already on this particular part that it seems as though the advisory panel might be quite toothless. I also note that there is the ability for the Inspector-General and the Deputy Inspector-General of Intelligence and Security to consult some of the other bodies that I have actually just recently referred to. So they can consult the Controller and Auditor-General and they can consult the Ombudsmen the Privacy Commissioner a human rights commissioner and the Independent Police Conduct Authority. They can consult those people but I am interested in knowing whether those people who have got particular roles within our country’s administration as well have a role of alerting theInspector-General and the Deputy Inspector-General of Intelligence and Security about any concerns that they might have.I am particularly interested in whether in Part 2—and I would be interested if the Minister in the chair would respond to this—the Privacy Commissioner in particular can raise concerns the other way. What we know is that the inspector-general can talk with can consult with can raise issues with and can get advice from the Privacy Commissioner but I would want to know whether if the Privacy Commissioner has concerns of her own she can actually have a direct line of communication with the inspector-general and raise those concerns.I do want to just address briefly the membership of the advisory panel. As I said before unfortunately we have a Government in place at the moment that does have a track record of appointing its friends and its colleagues and its relatives in fact to roles that should be independent. So the three-member advisory panel will have the Inspector-General of Intelligence and Security on there as of right and just two other people one of whom has to be a lawyer. People have already speculated on this but there are people who would fit in that category within the Government’s own ranks at the moment. It seems particularly fond of appointing its own to these types of positions and you know we may well end up with a family member of a sitting member of Parliament on that advisory panel as well.If we were to end up with what sounds like quite a preposterous situation but one sadly that is actually happening as part of this Government’s track record on a whole series of other appointments that it has made would there be a way of contesting the independence of family members of current members of the Government who are appointed to an advisory panel? Would there be a way of contesting and overturning a decision to have perhaps a just very recently retired member of the Government benches on that advisory panel?If that was at all a possibility—and the way I read Part 2 there is nothing at all in this legislation to prevent the Government from going down exactly that same track—then I think that is another major issue that New Zealanders should be concerned about. Although this all looks like this might give a little bit of accountability and a little bit of transparency to a situation that otherwise we have got very little knowledge and information about if that were to happen and if the wrong people or people who were not independent were appointed to the advisory panel—it would be laughable actually to try to pretend that they were at all independent of the Prime Minister and of the Minister in charge—then I think that that brings the whole of Part 2 into disrepute and means that we would not have transparency and oversight at all over the GCSB.I just want to reiterate again that the reason the oversight and the transparency in Part 2 is so important is that unlike any of the other intelligence and security agencies—the ones actually by the way that were prevented from coming before the Intelligence and Security Committee and making their submissions and that worries me too because I would want to know what the SIS would have to say about Part 2. I would want to know what the New Zealand Police would have to say about Part 2 but we will never know because the Prime Minister himself actually used his right of veto to stop them from coming forward and telling us what they think about Part 2 so we will never know what they think about it.But the point I really want to make and that I want to come back to is that this is so vitally important because the GCSB is the only intelligence and security agency in New Zealand that by right is in communication with intelligence and security agencies from other countries. That is the reason why—Hon ANNE TOLLEY (Minister of Police):I was not going to take a call on Part 2 of the Government Communications Security Bureau and Related LegislationAmendment Bill because it is a very self-explanatory part. I thought that the Attorney-General laid out the changes in Part 2 quite adequately. But the contribution of that member Sue Moroney who has just resumed her seat was so nasty and was such gutter politics that I had to take a call.It is quite interesting because I spent a great deal of time just yesterday with a gentleman called Mike Williams. He just happens to be the past president of the Labour Party. I was talking to him about his previous role with KiwiRail. Was he not appointed by the Labour Government to a significant position in KiwiRail? You see it is not new that Governments appoint people to positions that they have some connection with. When we are talking about Part 2 of this bill a huge amount of oversight has been put into the bill to correct—to correct—what was in the Act that the Labour Government passed. So this Government is actually putting more oversight including a deputy and much less bias into some of the positions and the management of the Government Communications Security Bureau. That is being done by this Government.But what really really is gutter politics is when you start attacking members of one’s family. I just want to say that that member should be ashamed—ashamed—of herself for talking about a bill that is actually dealing with the security of this country and for resorting to those sorts of low tactics in order to fill up her 5 minutes.KRIS FAAFOI (Labour—Mana):Thank you very much for giving me the opportunity to speak to Part 2 of this bill the Government Communications Security Bureau and Related Legislation Amendment Bill.Do not believe the crocodile tears from Anne Tolley. Do not believe the crocodile tears from Anne Tolley because the Government is absolutely and utterly telling—no I should not say that. It is not being accurate when it says that this bill does not expand the powers of the Government Communications Security Bureau (GCSB). Part 2 deals with the oversight of the GCSB. In Part 1 there is a massive expansion of the powers that have been given to the GCSB but there is not a consequential lifting of the standards of oversight in Part 2. So things have got worse and I think we saw a considerable amount of public concern on the streets—all around the country actually—a couple of weekends ago when New Zealanders got out there and made their opinions quite clear.I did want to look at clause 32 within Part 2 and this amends section 12 of the Inspector-General of Intelligence and Security Act 1996. Ironically section 12 of that Act is titled “Consultation” because there has been very little consultation on the part of this Government around this bill. For the benefit of those people who might be watching and listening—and that is not said in jest as I think there will be quite a lot of people who are very interested in the progress of this bill or lack of it I should say—it says in the bill that “The Inspector-General may—(a) consult any of the persons specified in subsection (3) about any matter relating to the functions of the Inspector-General under section 11;” blah-blah-blah.Those people who can be consulted are: “(a) the Controller and Auditor-General: (b) an Ombudsman: (c) the Privacy Commissioner: (d) a Human Rights Commissioner: (e) the Independent Police Conduct Authority.” I want to spend a bit of time concentrating on paragraphs (c) and (d)—the Privacy Commissioner and a Human Rights Commissioner who can be consulted with regard to the functions of the inspector-general. The Human Rights Commission took a very bold step in putting forward a report off its own bat to the Prime Minister about this bill. It was told not only that its funding would possibly be at risk because of its independent commentary but that its report was put in too late. But it was not actually a submission to the Intelligence and Security Committee; it was actually a report that it put up by itself to the Prime Minister because of the concerns that it had around this bill.As I say the Human Rights Commission is one of the agencies that can be consulted under the clause 32 amendment in the bill. Let us just hear what the Human Rights Commission had to say about this bill because it had some very grave concerns. It stated that “a full and independent inquiry into New Zealand’s intelligence services be undertaken as soon as possible.” It went on to say that “we cannot be certain … without an inquiry of this nature … that the correct balance is being struck between protecting national security and the personal security of New Zealanders and protecting the other human rights of people in New Zealand and what diversions from the correct path may have been taken or could be taken without adequate safeguards and oversight in place.” So we have from the Human Rights Commission an office that in Part 2 the inspector-general can consult with grave concerns about this bill. Maybe the consultation is coming a bit too late from this Government. Maybe it should have consulted with the Human Rights Commission before it put this bill to this Parliament.Also within the amended section 12 under subsection (3)(c) the inspector-general can consult with the Privacy Commissioner over any functions of the inspector-general. Let us just hear what the Privacy Commissioner had to say about this bill which is being put forward for this Committee at the moment. The Privacy Commissioner who again I say the inspector-general can consult with under Part 2 of this bill said that it is “because of the complex dynamic environment that I believe the topic needs to be considered further and in more detail.”—further and in more detail—“In particular it is not yet clear what type and level of oversight is most appropriate.” So here we have an agency the Privacy Commissioner that under Part 2 which deals with oversight is concerned about the level of oversight in this bill. I go on. The Privacy Commissioner added: “The effects on individuals are potentially very significant and it is important to get the legislation right.”They are comments from the Privacy Commissioner and before that the Human Rights Commission. Those two offices share very very similar views about this bill to what parties on this side of the House hold. We heard from Anne Tolley on Tuesday when Part 1 of this bill was being debated that we were playing politics with this bill. The Labour Party was playing politics with this bill and we should just get on board and make sure this bill gets passed. Well I put to you that the Human Rights Commission and the Privacy Commissioner have major concerns with this bill so much so that they said that there should be an independent investigation a full review before we go any further with this bill. Yet this Government trusts the Privacy Commissioner and the human rights commissioner to be consulted if the inspector-general wants any advice around oversight. I put to you that that just does not make sense.This Government says that it is OK for the inspector-general of our intelligence agencies to go to the Human Rights Commission and the Privacy Commissioner to consult those two offices when those two offices have very major concerns about this legislation. The Privacy Commissioner actually went on to say much more than that and I think members on this side of the Chamber will certainly support it. The Privacy Commissioner recommended that “a body such as the Law Commission should be asked to investigate the most appropriate shape of legislation to govern the intelligence agencies in New Zealand.”Hon Anne Tolley: Talk about Part 2.KRIS FAAFOI: Well I am because the Privacy Commissioner is put in clause 32 as one of the very people that the inspector-general of the intelligence agencies can consult. As I would like to point out to that Minister of Police you trust those two offices to be worthy of the inspector-general to consult when the inspector-general has concerns around oversight yet those two agencies have concerns about the oversight in this bill. That should be concerning to most New Zealanders who have more than apassing interest in this bill because those two agencies—the Human Rights Commission and the Privacy Commissioner—have major concerns around this bill.I also want to point to something—it is not lighter—that Grant Robertson certainly referred to in his speech and that is new section 15E in clause 33A which is about the clerical and secretarial services to the members of the advisory board and who supplies those services. It says in new section 15E that “The Department of the Prime Minister and Cabinet is responsible for providing to the advisory panel the clerical and secretarial services necessary for the advisory panel to perform its function effectively and efficiently.” We have seen just how effective the Prime Minister is in running the Department of the Prime Minister and Cabinet—no disrespect to those very good people who work up in those offices. But we have seen in the last week just how much of a farce it can be when John Key does not have a handle on his own department. We had a situation where he said one thing but the fact was something else and that department held on to—Hon Anne Tolley: What has this got to do with Part 2?KRIS FAAFOI: Well it has got everything to do with new section 15E if you want to have a look at the bill Minister. That department held on to that information for nearly a month—nearly a month. So I do not have confidence in the Prime Minister to run that department well enough if that department is going to have the ability to look after the secretarial services of that advisory panel.I just want to go back to my very first point and that is that there is not enough consequential oversight or increase in oversight because of the huge increase in powers that we are giving to the GCSB. We have also got a situation where the Privacy Commissioner and the Human Rights Commission have major concerns with this bill.Su’a WILLIAM SIO (Labour—Māngere):This is my first call on the Government Communications Security Bureau and Related Legislation Amendment Bill. It has been suggested that the Minister in the chair the Attorney-General has attempted to try to give assurances to this Committee on Part 2 but I would like to say to this Committee that if Part 1 and Part 3 are the bad parts of this legislation and if Part 2 is supposedly good then what kind of law do we then have? I am reminded that if you put a two-thirds part of dirty water into a glass of a one-third part that is clean what you end up with is a murky glass of water—a dirty stinky murky glass of water. The point is that irrespective of the assurances that the Minister has attempted to try to provide in Part 2 the overall bill is bad law. I think that is the message that New Zealanders have received from this particular Government: the result of this bill is one full dirty stinky glass of water—or bad law. So even though Part 2 might be considered as having some merits small as they may be the fact remains that overall this is bad law.I think that the protests in the last week or so up and down this country surely should give some indication to this Government about the strong views that New Zealanders have. I think that the question that most New Zealanders will be asking about as a result of the way this Government is rushing this piece of legislation through is the question of trust: can the people of New Zealand trust the way this Government is dealing with this by legislation? Can the people of New Zealand trust this Government—period?I say that this is bad law because New Zealanders know that this Government is introducing new and intrusive powers that enable a spy agency to apply intrusive State powers into the privacy of New Zealanders. That is the question that causes people to question the trust factor of this particular Government. Consider the significance of the personalities who have come out publicly and openly in opposition to the way this Government has dealt with this. From Ninety Mile Beach up north to Invercargill—Dr David Clark: The Mayor of Dunedin.Su’aWILLIAM SIO: The Mayor of Dunedin—Simon O’Connor: How does that member have this information?Su’aWILLIAM SIO: Look it is easy. Read it in the papers. It has been up and down on the front pages of the newspapers about how significantly New Zealanders feel about this Government and the way that it has handled “spy-gate” or “Key-gate”.Part 2 new section 5 in clause 29 talks about the appointment of the Inspector-General and the Deputy Inspector-General of Intelligence and Security. Again the question of trust arises because if the Prime Minister is the one who is now charged with the appointment of the inspector-general and the deputy inspector-general and we are expected to put our trust and faith in a Prime Minister who circumvented the normal processes of appointment and appointed his mate by abusing the appointment process that calls into question the trust factor of this Government and the way that it has dealt with this issue.My colleague Phil Goff talked about Part 2 moving cautiously and marginally. The reality is that Part 2 does not provide any oversight or guarantee of protection from the abuse of power. There is no trust established by simply saying that the inspector-general is going to be appointed by the Prime Minister. What Part 2 of the bill does is create an environment that will allow the abuse of powers and most New Zealanders now see how the rushing of this legislation is more about hiding and protecting the wrongs that this Government has done rather than attempting to protect the rights—SIMON O’CONNOR (National—Tāmaki):I moveThat the question be now put .Dr DAVID CLARK (Labour—Dunedin North):It is indeed a pleasure to rise to speak to this Government Communications Security Bureau and Related Legislation Amendment Bill. It is my first opportunity to speak at all on this bill. The piece that I am speaking to is Part 2 and I am glad that I have the opportunity to speak to this part because it really does cut to the core of the issue about trust. My colleagueSu’a William Sio has pointed out that if this is the best part of the bill and the other parts—Part 1 and Part 3—are the worst that is not a good way to make law. But I wish to focus on Part 2.We are told in the explanatory note of the bill: “The purposes of the Bill are to—provide for a clearly formulated and consistent statutory framework governing the activities of the Government Communications Security Bureau …”. The second of the three purposes is to “update that framework to respond to the changing security environment (particularly in relation tocybersecurity and information security) and to changes in the public law environment since the GCSB Act was passed in 2003 …” and the third is to “enhance the external oversight mechanisms that apply to the intelligence agencies by strengthening the Office of the Inspector-General of Intelligence and Security and by improving the operation of the Intelligence and Security Committee.”All of these things go to trust and to how the public can be assured that this is enhanced. When we talk about enhancing the external oversight mechanisms we are talking about not only having a proper oversight but also being seen to have a proper oversight. In some senses they are one and the same thing because that role must be performed by people whom New Zealanders trust. It is likely that New Zealanders will trust this agency and these persons only when they understand what has gone wrong in the past and what could go wrong in the future.Were it not a serious matter we would call it a comedy of errors in relation to our spy agencies in recent months. The Labour Party absolutely supports the best possible security arrangements and the best possible guarantees that New Zealanders’ interests—economic personal and otherwise—are being protected but it does that wanting also to know that the best possible guarantees are being given to New Zealanders that the powers of our intelligence agencies are not being exercised in poor ways misused or are exposing people in ways that are inappropriate.That brings me to the Supplementary Order Paper 305 in name of David Shearer the leader of the Labour Party. David Shearer has lodged Supplementary Order Paper 305 which seeks to have an investigation into the way that the agencies are run. His amendment to clause 25 states that “Within 1 month of the commencement of this Part”—were the bill to pass—“the Minister must determine with the agreement of the leaders of each political party for the time being recognised for parliamentary purposes under the Standing Orders …” and so on and so forth—Grant Robertson: Not Peter Dunne.Dr DAVID CLARK: Not Peter Dunne my colleague says. It means that a series of agreed leaders around Parliament who can then represent the interests of different parts of society will meet and determine who should be on an inquiry. The leaders will establish a terms of reference for an independent inquiry into the purposes and functions of New Zealand’s intelligence agencies and they will set up the membership for that inquiry.This is something that is very difficult to disagree with I think on a logical basis. Having a good look at the many things that have gone wrong in the past months seems like a very sensible idea not only to this side of the House but to many New Zealanders. I want to put on record that I noted when I was out doorknocking a couple of weeks ago that mainstream New Zealanders New Zealanders whom I would not necessarily have expected to be concerned about our spy agencies are concerned. I spoke to one man a mechanic perhaps of a similar age to the Chair—a young man still but probably older and potentially wiser than myself. This man was very concerned about the oversight of these agencies and whether they were interfering with ordinary folks’ rights in New Zealand.He was also concerned that his children are on the internet and so forth. Today many of our conversations happen on the internet. We now have those conversations that we once had in private over the internet. We do not expect—Dr CAM CALDER (National):I moveThat the question be now put .STEFFAN BROWNING (Green):I would like to start my talk on Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill around trust as well and to start with the Prime Minister’s selection of his mate as the head of the Government Communications Security Bureau (GCSB). I just need to keep reflecting on that as we go through. We also reflect on the 80-plus people who were illegally spied on. Have we got trust? We reflect on the Waihopai “Five Eyes” institution in my neighbourhood which we know has been spying in a very broad way and doing bulk information surveillance. Then we have got the Henry inquiry. So we need to really think about trust as we look at Part 3 because the inspector-general—The CHAIRPERSON (Eric Roy): Order! We are on Part 2.STEFFAN BROWNING: Part 2 sorry yes—Part 2. In relation to the Inspector-General of Intelligence and Security and whatever capacity is given to the inspector-general through Supplementary Order Papers because there was a limited capacity to start with what capacity is there for depth of oversight? How much can they actually drill down into those issues of trust that I have just raised? Clause 32(3) sets out the persons whom the inspector-general can consult with: “(a) the Controller and Auditor-General: (b) an Ombudsman: (c) the Privacy Commissioner: (d) a Human Rights Commissioner: (e) the Independent Police Conduct Authority.” These persons in a way should more likely be a mandatory part of a trustworthy oversight body not persons who may be consulted with. If we go on to the advisory panel—and remember that is an advisory panel—who does the make-up of that? It is done by the Governor-General on the recommendation of the Prime Minister. The Prime Minister at the moment really is not the subject of a high level of trust by the community.We have heard the discussions about the number of people who have protested and the level of concern expressed by the Law Society by Dame Anne Salmond and it goes on—the Privacy Commissioner and others. They were concerned about the way this bill has been brought to Parliament. The trouble with the fact that there are so many Supplementary Order Papers—not the ones from the Opposition that are trying to balance up the ones from the Government—meant that those people could not actually comment as well as they could or ideally would in terms of the function of the advisory panel and the make-up of oversight.There have as well been a number of very recent publications in the media from various interested people with some expertise in this area. One was from Dr Damien Rogers a former senior adviser to the GCSB. He also warned about this sort of make-up who the reporting should be to and whatever and suggested that maybe it should not be the Prime Minister; it should be the Minister of Defence. The Green Party has considered at times and wondered whether maybe the police would be a better body. But that sort of oversight or that consideration by the community has not really had its opportunity.Another publication that came out a couple of days ago was from the United Nations Secretary-General Ban Ki-moon who was meeting with a group of South American foreign Ministers who voiced their concern to the United Nations chief about reported large-scale surveillance programmes. Mr Ban himself noted that the UN human rights mechanisms have pointed to important rights and privacy issues at stake in connection with surveillance. Will our oversight group the inspector-general and his cohorts—or her cohorts—be able to give the level and depth of oversight that those same people were concerned about? I for one have serious doubts.Austin Forbes QC convenor of the New Zealand Law Society was also concerned about how oversight would go and also about the lack of opportunity to drill down—JAMI-LEE ROSS (Junior Whip—National):I moveThat the question be now put .A party vote was called for on the questionThat the question be now put.Ayes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Noes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendment set out on Supplementary Order Paper 306 in the name of the Rt Hon John Key to Part 2 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Noes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Amendment agreed to.The question was put that the amendment set out on Supplementary Order Paper 305 in the name of David Shearer to insert new clause 27A be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Noes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.The question was put that the amendment set out on Supplementary Order Paper 311 in the name of Dr Russel Norman to clause 31 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendment not agreed to.The question was put that the amendments set out on Supplementary Order Paper 312 in the name of Dr Russel Norman to clause 34 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes57New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; Independent: Dunne.Amendments not agreed to.A party vote was called for on the questionThat Part 2 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; Independent: Dunne.Noes60New Zealand Labour 34; Green Party 14; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Part 2 as amended agreed to.Part 3 Amendments to Intelligence and Security Committee Act 1996Hon CHRISTOPHER FINLAYSON (Attorney-General):This part proposes a number of amendments to the Intelligence and Security Committee Act 1996 the long title of which provides that it is an Act to increase the level of oversight and review of the intelligence and security agencies by establishing the committee. The functions of this committee are modelled on the terms of reference for select committees. The billproposes a number of additional functions: first a function of considering and discussing with the inspector-general the annual report which provides a formal link between the two oversight bodies. Importantly Mr Dunne’s Supplementary Order Paper 308 will also add that the annual financial review of the intelligence agencies is to be held in public subject to restrictions relating to classified information.New section 7A in clause 39 sets out the membership of the committee. Members can read it for themselves. Basically it is the Prime Minister the Leader of the Opposition and a couple of other members of the House of Representatives nominated by the Prime Minister or nominated by the Leader of the Opposition. There is actually a practical problem in the way this is structured in trying to schedule meetings. Some proposals are set out in Part 3 to improve the composition of the committee so that other members may sit if the Prime Minister is unavailable. The proposals set out in clause 39 directly address issues of convenience and efficiency. Importantly the Prime Minister will have to step aside from the chair when the financial performance of an agency takes place if he or she is the Minister responsible for the portfolio. The Prime Minister will also be able to be substituted by the Deputy Prime Minister or the Attorney-General—yours truly—and the Leader of the Opposition by his or her deputy which would be a grand opportunity for Mr Robertson while he still holds that position before any leadership purge takes place.Chris Hipkins: Just can’t help himself. He just can’t help himself. “Mr Nasty”. “Mr Nasty”.Hon CHRISTOPHER FINLAYSON: What that does is provide greater flexibility in holding meetings. No the nasty person in the House is the poor old member for Rongotai who seems to be going through a very bad patch—maybe it is because she sees—Hon Phil Goff: She’s thrashed the backside off that member in a number of elections.Hon CHRISTOPHER FINLAYSON: Well of course she would because it is possibly Labour’s strongest seat. She has never lost the seat. Another strong seat of course was the seat of Roskill which Mr Goff lost to Gilbert Myles—the most embarrassing political defeat in history. Mr Myles beat Mr Goff—a deeply embarrassing situation for Mr Goff—not surprisingly after his 6 years as a very low-grade Minister of the Crown in the Lange Government.Anyway let me come to—[Interruption ] Oh they have woken up out of their slumber. Let me come to Mr Dunne’s Supplementary Order Paper 308 which also raises a number of very important matters and concerns an independent review. What this does is create an opportunity for a periodic review of the legislation at very regular intervals. It is something like section 202 of the Evidence Act 2006. There will be a review which has to be commenced before 30 June 2015 and afterwards held at intervals of not shorter than 5 years and not longer than 7 years. So there will be a regular review and that will be an extremely important provision. There are detailed provisions set out as to the appointment of reviewers who the reviewers can be the provision of information to them and the report of the reviewers. These are very important provisions to increase oversight. We have heard a lot of things from Labour members about the need for a review but we are not talking about one review; we are talking about instituting a regime of periodic reviews. If they had any integrity they would be supporting this part.GRANT ROBERTSON (Deputy Leader—Labour):I rise to speak on Part 3 of the Government Communications Security Bureau and Related Legislation Amendment Bill but as the Minister in the chair the Attorney-General has introduced the question of electoral defeat I thought we could perhaps traverse the Minister’s career which hasbeen an illustrious one of defeat beginning I think with losing the Mana seat to Graham Kelly—would that be right or was it Winnie Laban? It was Winnie Laban.Hon Christopher Finlayson: Dear old Winnie.GRANT ROBERTSON: Well it was Winnie Laban. I had been kind of hoping it was Graham Kelly because I do see a future for the Minister in the chair as the High Commissioner to Ottawa which is where Graham Kelly ended up.Hon Phil Goff: I would have thought Siberia.Chris Hipkins: Mongolia.GRANT ROBERTSON: That is right there are a number of places that he could be sent and that would be possible. But I can tell you that out in Rongotai they are looking for the Attorney-General because they cannot find him. Here in the Labour caucus we all just wish and hope that Mr Finlayson will run against us in the next election. That is what we all wish. If he stumped up in Wellington Central—he has lived in the seat for years and years but is too scared to run in Wellington Central.The CHAIRPERSON (Eric Roy): Order!GRANT ROBERTSON: I am merely responding to the Minister’s comments.The CHAIRPERSON (Eric Roy): I understand that. It is time for the member to debate Part 3.GRANT ROBERTSON: Very good. In Part 3—and it would have been nice if the Minister had stuck to it as well—we are debating the question of the amendments to the Intelligence and Security Committee Act 1996. On this part of the bill it would be fair to say—unlike Part 2 because the Opposition could see in Part 2 the improvements that the Government had attempted to make; they did not go far enough but we could see them—the effort does not even get there. It is a token effort to do something about an Intelligence and Security Committee that has not under the leadership of John Key provided the kind of oversight that we believe should be in place.We also believe that by legislation this is exactly the kind of legislation that should be part of an overall review of our intelligence agencies. In 1996 when this legislation was brought in this was deemed to be the appropriate structure for the committee. Some minor tinkering takes place in Part 3 but the basic structure of the committee remains and the basic problems with the committee remain.That was never better exemplified than when the committee was hearing this bill. The leader of the Labour Party David Shearer made the not-unreasonable suggestion that some of the agencies for which now under this bill it will be possible and legal for the Government Communications Security Bureau (GCSB) to assist might like to come to the committee and describe to the committee the kinds of actions and activities that the GCSB would be working with them on how it worked with them and what the relationships would be. That is at the heart of Part 1 which has already been passed by the Committee today. That is what David Shearer sought for the committee to do. John Key ruled that out. He ruled that out straight away as the chair of the committee. Dr Norman and David Shearer as the two Opposition members on the committee were trying to have the committee undertake a proper analysis of this bill. They were not able to do that because the Prime Minister in the chair assisted by Mr Ryall and John Banks were able to stop that from happening. That to us highlights the shortcomings of the Intelligence and Security Committee that are not corrected by the amendments that stand in Part 3.We can look around the world and find other examples of the way intelligence and security committees are composed and the way that they go about their business which we believe should be seriously considered in terms of the New Zealand model and should be part of Part 3 today. We need only look across the Ditch where in Australia they had two large-scale reviews of their intelligence agencies. They did that becausethe Australian agencies were struggling in a number of areas. What that led to was a parliamentary oversight that was significantly enhanced.I want to pick up one particular aspect of the Australian Parliamentary Joint Committee on Intelligence and Security and that is that Ministers the Speaker and the President of the Senate are not able to be members of that committee. That is a very significant difference from the Intelligence and Security Committee which we are looking at today. It makes it Parliament’s committee. It is quite clear that this is a statutory committee that we are amending here in Part 3 of the legislation. It is a statutory committee. It is separate from the select committee process. But making those changes that the Australians did to not have the Ministers in place in those roles is a very significant change. I am not yet ready to say that that is absolutely what I think should happen in New Zealand but I do believe that it should be on the table in any review. As I said in my call on Part 2 earlier I personally believe that we do need the Inspector-General of Intelligence and Security to be an Officer of Parliament and we certainly need to enhance the Intelligence and Security Committee in terms of its role as representative of this Parliament. So the Australians have that matter.I will return shortly to the question of the functions of the committee which are being amended in clause 38. I want to reference one other country’s intelligence and security committee arrangements and that is Norway’s because that is another step again from where the Australians are. The Australians are saying no Ministers and excluding the President of the Senate as well. What the Norwegians have done is create a Parliamentary Intelligence Oversight Committee that actually includes non-politicians. It is actually a committee that—and this is exactly what the Act says—“should represent a wide range of experience both political and from other walks of life.” It actually says that sitting members of the Parliament cannot sit on the committee. That is another step again from the question of whether or not you would have non-Ministers on it.These are exactly the options that should be on the table in a review which is contained in Supplementary Order Paper 305 from David Shearer on this part as well. We need to look at a wider range of options. It may be possible to put the two together to have a parliamentary oversight committee but also have one that has the general public having some oversight. The Norwegian example is one where they can investigate a number of matters. They are restricted—of course they are restricted—in terms of the information that they can look at but when you look at the purposes of the Norwegian committee the very first one of those is to discover and prevent unjust treatment of any person. Surely that is the kind of oversight we would want. We would want to know that there were people looking over the actions of our intelligence agencies with a mind to avoiding unjust treatment. Imagine if we had had that before the Kim Dotcom saga or before we found out about the 88 illegal spying cases. The Norwegians have a very open model. Again I am not saying that that is necessarily the exact answer but when we look at what the Government is putting on the table in Part 3 it is woefully weak in improving the way in which the Intelligence and Security Committee works.When we return to the functions of the committee which are contained under clause 38 here—look yes it is an excellent idea to have the Inspector-General of Intelligence and Security discuss his or her report but when the committee is fundamentally set up the way it is it is not going to be able to inquire into all of the matters that it should. Even the Australians have understood that. They slightly expanded the functions of their committee to make sure that they could review any matter in relation to the agencies that was referred to it. That is a wider brief than what we have in New Zealand and obviously when the Ministers are not in charge of the committee that could lead to some quite substantive investigations.We do believe that the Intelligence and Security Committee has an important part in establishing that framework of trust that New Zealanders need to rebuild in our intelligence agencies. Where we are today is that our trust and faith in our intelligence agencies are at their lowest possible level. That falls at the feet of John Key and the National Government but it is also contributed to by the structures that are around our intelligence agencies.We have not had a review of our intelligence agencies since 1976. That is far too long and too much has changed in the world for us to complacently sit here and in Part 3 tinker about with the Intelligence and Security Committee structure and say that that is enough. The world has changed. The digital era has fundamentally changed the way we communicate with one another and in turn has fundamentally changed the way that security and intelligence agencies work. The Government must recognise that have a review and look at the widest possible range of options for oversight. That includes a more independent inspector-general and it includes relooking at the way in which Parliament does its job on behalf of New Zealanders to look out for these intelligence and security agencies.The amendments in Part 3 are not even window dressing. They are just the most minor of tinkering to try to make the Government look like it is doing something to make the Intelligence and Security Committee a stronger body. The bill does not do that. My colleague Mr Goff I am sure will take a call shortly—and I will leave him to talk about this in detail—and I am sure that one of the things that he will raise is the question of who should chair the Intelligence and Security Committee because there are some ideas out there that having a Government member as the chair of that committee effectively leads us to where we have ended up. New Zealanders need to re-establish trust.Dr RUSSEL NORMAN (Co-Leader—Green):I rise on behalf of the Green Party to speak to Part 3 of this bill the Government Communications Security Bureau and Related Legislation Amendment Bill. Part 3 is in relation to the Intelligence and Security Committee. I endorse the comments of Mr Grant Robertson who gave an excellent speech. I very much really appreciate the direction of the Labour Party policy on this particular matter after the 2003 legislation which the Greens did not support.Anyway Part 3 of this bill is about the Intelligence and Security Committee. Think about it—this is meant to be a committee that provides oversight over the agencies. The Minister responsible for the agencies chairs the committee so we have already got a pretty big problem of conflict of interest in terms of oversight and unfortunately this bill does not fix that. The Intelligence and Security Committee has five members. It has the Minister who chairs it and the Leader of the Opposition and the Leader of the Opposition nominates one person and the Minister nominates two.I have been fortunate enough to be nominated by Mr Goff when he was Leader of the Opposition—thank you Mr Goff—to be on the committee and then I was nominated by David Shearer to be on the committee. Having been on the committee for some time now I am well aware of its extreme limitations and the limitations in its ability to provide the kind of oversight that I think New Zealanders would expect a committee of parliamentarians to provide. I think it is most unfortunate that we do not have the kind of oversight of the Government Communications Security Bureau (GCSB) and the SIS that I think most New Zealanders would like us to have. Essentially that is because the structure of the committee does not provide it. You basically have the Minister responsible who has an enormous role within the GCSB and the SIS. It is not a stand-apart role for the Minister responsible for the GCSB; it is very much in control of what the GCSB does. That Minister also controls the Intelligence and Security Committee soit is very difficult to get any kind of real independent oversight in that situation when the Minister controls both the oversight committee and the agency itself.I thought it was interesting that the last review done of these agencies was in the first calendar year of the Muldoon Government because a lot of what has been going on lately certainly reminds me of Muldoonism so it is a most interesting coincidence. I think it is also important to understand that the Intelligence and Security Committee is very highly constrained in what it can do. It has very few powers to inquire into what these agencies are doing. Even if the Prime Minister were of a mind to allow the committee to inquire into the operations of the GCSB and the SIS the committee itself has enormous constraints on what it can inquire into.A normal regular select committee has a lot of power to require departments and so forth and officials to appear in front of it and to inquire into their activities. The Intelligence and Security Committee I am afraid has very few of those kinds of powers in order to inquire into what these agencies are doing particularly in relation to operational matters.Other jurisdictions as Mr Robertson has pointed out have given their oversight committees much greater powers. As well as their having independent people on the committee in order to make sure the committee is not controlled by the Minister who is also controlling the agencies that the committee is supposed to providing oversight of those jurisdictions also give their oversight committees much greater powers. The American committees for example under the US system have the power of subpoena. If you are a spy working in an agency and you are working unlawfully—and of course we have now found the GCSB has been operating unlawfully on over 80 occasions—your fear is that the oversight committees could subpoena you to appear in front of them and you could be forced to give testimony that would effectively incriminate you for operating in an unlawful manner.The Intelligence and Security Committee in New Zealand has no such powers. We cannot demand that spies appear in front of us. We cannot demand that they testify and tell us about what they have been doing and about their unlawful activities. The GCSB can simply say: “No we don’t wish to discuss that matter.” if we were to ask about it and that would be the end of the matter. We cannot make them tell us things. If there is any question about whether we might be able to make them tell us things the Prime Minister chairing the committee can prevent any testimony and can prevent any attempt to drag officials before the committee. So there is no threat. The committee has no power. It has no stick. It cannot force people to do anything so why on earth would an agency that has been operating unlawfully on many dozens and dozens of occasions have anything to fear from this committee? Unfortunately the changes that the Government is proposing do not change any of that at all.What I have done in my Supplementary Order Paper to this bill before the Committee is propose to remove some of those constraints. My Supplementary Order Paper 313 is basically amending what the committee can do. It would give the committee much greater powers to inquire into what the agencies are doing—the very agencies that the committee is supposed to be providing oversight of. I think that that is quite an important amendment to make. If we do not give the committee those kinds of powers ordinary New Zealanders will look at this committee and think: “Well you know OK we don’t know what the spies do but there are these elected people up there who do know what the spies are doing.” Ordinary people would look at the committee and think: “Well there are these people on the Intelligence and Security Committee who do know what the spies are doing so at least someone is watching the spies.” The problem is that if the Intelligence and Security Committee does not have the powers to actually investigate what these agencies are doing then I am afraid ordinary NewZealanders are being misled if they think that the Intelligence and Security Committee has the powers to provide a proper oversight function. It simply does not. It does not have the powers. It is dominated by the Minister who is responsible for the agency. It simply cannot do the functions that basically I think all of us expect it to do.I would also like to talk about the review process that has been proposed here by Mr Dunne. I do not wish to impugn Mr Dunne’s motives because I think that he genuinely does want to put a review process into this legislation. However I think it is too confusing for people following the debate to think that the review process that Mr Dunne is proposing is anything like the kind of review process that the Labour Party and the Green Party have been proposing. They are entirely different beasts. This is not the kind of review that would look at the agencies as a whole why they exist what they are there for what kind of structure they should have and what their purpose is. It is a much narrower review and there is absolutely no requirement for the review to be concluded—for example its recommendations to be put in place.By analogy I would refer people to the MMP review if we are to think about what kind of review we have here. After the referendum on MMP when New Zealanders voted to keep MMP there was a promise by the Government that there would be a review and there was a review by the Electoral Commission which is an independent agency. It came up with a series of significant recommendations to amend the system. However the Government of the day decided purely for partisan political reasons to implement none of them. So it is all very well to have a review within this bill and within this legislation but just having a review does not guarantee that any of the recommendations will actually be implemented. It does not guarantee the kind of depth the review might require particularly in light of the malfeasance and illegal activities of these organisations. They clearly need a pretty serious review when they have been operating illegally on dozens and dozens of occasions. It does not guarantee the kind of depth the review needs and there is no guarantee that it will reach conclusions and that those conclusions will be implemented and of course the review will be appointed by the Prime Minister. It will not be an independent review; it will be undertaken by people appointed by the Prime Minister.So although I certainly will be supporting Mr Dunne’s proposals around the review—good on Mr Dunne for getting them—none the less it does not change the fundamental problems of this bill. Mr Dunne still has an opportunity to change his vote on this bill and I would strongly urge him to do so. I would also urge the ACT Party to do the same. It is completely anathema to the very founding principles of the ACT Party that the ACT Party is voting for a bill that significantly increases State powers. It does not significantly increase the power of oversight within the Intelligence and Security Committee within Part 3. So how can the ACT Party a party that is supposedly based on a principles of liberty and freedom be voting for a bill that in Part 1 dramatically increases the powers of State surveillance but in Part 3 provides virtually no increase in terms of the ability of the elected representatives on the Intelligence and Security Committee to actually provide better oversight of this big increase in powers? How can that be consistent with a party that says it is built on the principles of freedom and liberty—that is how can it vote for a big increase in State surveillance but not match that by voting for a big increase in the ability of the democratically elected representatives to provide oversight of that increase in the surveillance powers in Part 3 which is the part that we are discussing at the moment? That is why I think anyone who believes in freedom should vote against this bill.PAUL GOLDSMITH (National):I moveThat the question be now put .Hon PHIL GOFF (Labour—Mt Roskill):It is deeply ironic when we are talking about a section of the Government Communications Security Bureau and RelatedLegislation Amendment Bill where we need a non-partisan approach to scrutinising the activities of our intelligence agencies that the Minister in the chair Chris Finlayson should have been so partisan. It is true Mr Finlayson that the National Party candidate Gilbert Myles beat me. I beat him 3 years later and the last time he was heard of he was appearing before the court for perverting the course of justice. I have won 11 times and I have lost once. The Minister in the chair has lost three times. You would think that that would be a humbling experience but the arrogance of the Minister shows no sign that he has learnt at all from being beaten on three occasions each time by a woman member of Parliament.Now I want to come back to the bill. The Minister in the chair said that this bill is about making a group that is like a select committee. The Intelligence and Security Committee has absolutely nothing in common with a select committee. It meets rarely and—The CHAIRPERSON (Eric Roy): I am sorry to interrupt the member but the time has come for me to report progress.Progress to be reported presently.House resumed.The Chairperson reported progress on the Government Communications Security Bureau and Related Legislation Amendment Bill and no progress on the Resource Management Reform Bill.Report adopted.