Shearer David: Questions for Oral Answer — Questions to MinistersText is incorporated into the Bound VolumeShearer David: Questions for Oral Answer — Questions to Ministers[Sitting date: 10 April 2013. Volume:689;Page:9199. Text is incorporated into the Bound Volume.]3.DAVID SHEARER (Leader of the Opposition) to thePrime Minister: Does he stand by all his statements?Hon BILL ENGLISH (Acting Prime Minister): Yes.David Shearer: Does he stand by his statement on 24 September last year in relation to the Government Communications Security Bureau that “I’ve never had advice in the four years that I’ve been minister that they’ve in any way ever acted unlawfully outside of the advice I received last Monday which was that they possibly acted unlawfully.”?Hon BILL ENGLISH: Yes in July last year the Prime Minister was told by the Director of the Government Communications Security Bureau that a question had been raised by the Inspector-General of Intelligence and Security about the Government Communications Security Bureau’s assistance to the Security Intelligence Service. I am advised that this question was raised in the context of the inspector-general’s involvement in a review of the New Zealand Security Intelligence Service Act. Lawyers for both the Government Communications Security Bureau and the New Zealand Security Intelligence Service were convinced that their longstanding interpretation which had been in place for several decades and their practices were correct. When the question was raised the lawyers for both of those agencies informed the relevant directors of their view that the interpretations and the practices were correct. The Prime Minister was not told in July that the activities were unlawful. In fact as a result of the issues being raised he was advised that they were lawful. Legal discussions continued to be followed and that was the case for some time.David Shearer: Given that he was told in July about the possible unlawful spying on New Zealanders why did he not immediately suspend any such activity to protect the fundamental rights of New Zealanders?Hon BILL ENGLISH: Is it going? Sorry Mr Speaker can I hear the question again?Mr SPEAKER: Yes certainly. Would David Shearer please repeat the question for continuity.David Shearer: Given that he was told in July about the possible unlawful spying on New Zealanders why did he not immediately suspend any such activity to protect the fundamental freedoms of New Zealanders?Hon BILL ENGLISH: As I pointed out in answer to the principal question when an issue was raised of—[Interruption]Mr SPEAKER: It is more important that Parliament hears this than television.Hon BILL ENGLISH: As I said in the answer to the principal question when the matter was raised by the inspector-general advice was given by the lawyers of the Government Communications Security Bureau and the Security Intelligence Service that the longstanding practice and interpretation which had been in place both prior to the Government Communications Security Bureau Act and under the Government Communications Security Bureau Act under the previous Labour Government for 5 or 6 years was legally valid. That was not the end however of legal discussions. They went on for some time.David Shearer: Does he not think it is his duty to New Zealanders that as soon as he finds out that there is the possibility of illegal spying he stops spying altogether?Hon BILL ENGLISH: When sufficient doubt was raised about that—Grant Robertson: Rubbish!Hon BILL ENGLISH: When sufficient doubt was raised about that the Director of the Government Communications Security Bureau took exactly that step and it still remains in place. At the time that these matters were raised with the Prime Minister the subsequent advice was that the activities were lawful. That turned out to be incorrect.Louise Upston: So when was the Prime Minister first made aware that there were 88 people who may have unlawfully been subjects of surveillance by the Government Communications Security Bureau?Hon BILL ENGLISH: On behalf of the Government Communications Security Bureau—[Interruption]—the Prime Minister—Mr SPEAKER: Order! I want to hear. [Interruption]Hon BILL ENGLISH: —the Government Communications Security Bureau is not very pleased with the Government. On behalf of the Prime Minister he was made aware when he received Rebecca Kitteridge’s report on 22 March. Miss Kitteridge was unable to confirm the number herself until the day before she completed her report. In addition final legal advice was not received from the Solicitor-General on this matter on the legality of the Government Communications Security Bureau’s activities until 19 March 2013. It is a nonsense to suggest that the Prime Minister should or could have released information regarding the question of legality surrounding these 88 people sooner than when the advice was clear and the report was completed. This was something that was unclear. Legal interpretation still remains difficult and it would be irresponsible for the Prime Minister to raise these issues in public without full information and without clear legal advice as to the status of the Government Communications Security Bureau’s activities.David Shearer: Why did he not ever mention in the myriad of media interviews and public statements he has made on the issue of the illegal spying that there were red flags as he calls it raised in July last year?Hon BILL ENGLISH: This amounts to the Prime Minister saying he knew something before he knew it. The inspector-general raised the possibility that there were questions. The immediate answer to those questions was that the activities of theGovernment Communications Security Bureau were legal because the chief legal advisers of both intelligence agencies thought that the practices they had followed under the previous Labour Government pursuant to the Act that the previous Labour Government had passed were legal.Louise Upston: What was the purpose of the Government Communications Security Bureau Act of 2003?Hon BILL ENGLISH: The Government Communications Security Bureau Act was passed in 2003 under the previous Labour Government and its purpose was to continue the Government Communications Security Bureau and establish it as a department of State. It actually already existed and it was already active. The Act was intended to codify the existing practices. Those practices included the Government Communications Security Bureau assisting the New Zealand Security Intelligence Service to undertake surveillance of New Zealanders. That was known to the Government of the time never questioned by the Government of the time nor were any questions raised about the legality of those activities when that Act was passed. The Government Communications Security Bureau was assisting the New Zealand Security Intelligence Service. I think the House needs to be aware that the New Zealand Security Intelligence Service does legally undertake surveillance of New Zealanders. The Government Communications Security Bureau was acting as its agent to assist with its specialised analytical skills.David Shearer: Can the Prime Minister confirm that he is the first Minister responsible for the GCSB who has been alerted to the potential illegal spying by that bureau?Hon BILL ENGLISH: I do not think the Prime Minister can confirm that because he will not be aware of every conversation that would have happened under the previous Prime Minister who passed the Government Communications Security Bureau Act and I presume very thoroughly examined the way the Act was structured to ensure that the activities of the Government Communications Security Bureau were legal. What I can tell the member is that when the Prime Minister became aware of the significant legal issues he took action and in the next couple of weeks the results of that action will be made clear to the House and to Parliament.Louise Upston: Why is the Inspector-General of Intelligence and Security now looking into the 88 cases referred to him?Hon BILL ENGLISH: The Inspector-General of Intelligence and Security is the watchdog that has been set up by this Parliament to oversee the activities of the intelligence agencies. The Prime Minister has written to the inspector-general and asked him to look into these cases. His office is the correct place for these inquiries to be directed. Parliament has set out in section 11 of the Inspector-General of Intelligence and Security Act that his functions are to inquire “into any matter that relates to compliance by an intelligence and security agency with the law of New Zealand”. His functions also include inquiring into any matter where it appears that a New Zealand person “has or may have been adversely affected by an act ... or procedure of an intelligence and security agency.” So the inspector-general is the correct person to refer concerns about the legality of actions of the intelligence agencies.David Shearer: Just yesterday the Prime Minister said that the question of the legality of the Government Communications Security Bureau was “unresolved”; why did he not with that amount of doubt stop the activities of the Government Communications Security Bureau in its illegal spying?Hon BILL ENGLISH: The answer is the same as the answer I gave earlier. When the questions were raised by the inspector-general and advice was taken on the legality of the actions that immediately related to that the advice from the senior legal counselon these matters regarded as expert who had overseen the process—and in some cases for many years—was that the activities were legal. However that was not the end of the legal discussion. As soon as the Prime Minister took the view that there was significant doubt about the legality of the actions he along with the Government Communications Security Bureau moved to suspend the activities of the Government Communications Security Bureau that may have been in doubt. And I would stress the point the member made. It still an open question as to whether those activities were legal or not legal and the inspector-general is going to have a look at it and he will recommend what action should be taken.David Shearer: In relation to his answer can he please answer why spying continued when the question of legality was still unresolved in the mind of the Prime Minister; why did that spying continue when it was unresolved?Hon BILL ENGLISH: Because the legal advice at the time appeared to resolve the matter with the advice that the behaviour was legal—that is why.Dr Russel Norman: When issues arose in July 2012 when the Prime Minister was briefed as to some concerns as to the legality of what the Government Communications Security Bureau was doing why did the Prime Minister not ask for a legal opinion from the Crown Law Office?Hon BILL ENGLISH: I cannot give you exactly the answer on whether one was requested or whether one was offered. The advice I have on behalf of the Prime Minister is that the senior legal advisers of the agencies believed the actions were legal. That was not the end of the legal discussion. Advice has been subsequently taken. As I said before it is still an open question as to whether the interpretation of the Act which was in place under the previous Government and under this Government was correct or not correct. There is doubt about it. Activities of the Government Communications Security Bureau have been suspended and the inspector-general is looking into the matter.Dr Russel Norman: Is the Minister aware of the “Cabinet Directions for the Conduct of Crown Legal Business 2012” which state that “the Attorney-General and the Solicitor-General have constitutional responsibility for determining the Crown’s view of what the law is”; and if he were aware of that given that there was a question of the legality of theGovernment Communications Security Bureau raised with him in July 2012 why did he not follow these Cabinet directions and seek a legal opinion from the Attorney-General and the Solicitor-General?Hon BILL ENGLISH: Legal opinions were sought and as I answered in an earlier question the Solicitor-General gave his final legal advice on this matter as recently as 19 March. So in fact the Government has been keen to sort out exactly what the legal issues are. It has turned out that in the light of 20 or 30 years of practice where the legality was taken for granted and the behaviour was advised as legal it has taken some time for others who have addressed the issue to come to a view that there is serious doubt. In fact as soon as the Prime Minister was aware of significant doubt about the legality of those matters and as soon as theGovernment Communications Security Bureau was aware of it they suspended activities. That was about 6 months ago.Dr Russel Norman: Given that the Minister responsible the Prime Minister did not go to Crown Law on immediately discovering there was a question of legal interpretation as to whether theGovernment Communications Security Bureau was acting lawfully is he confident that the Minister responsible is up to the job of providing oversight of the bureau?Hon BILL ENGLISH: I do not accept the member’s assertion about what the Prime Minister did or did not do simply because we do not have that information in front of us. But I can reassure the member that the inspector-general raised the issue as is hiswont. Just quite why it came up after many years of the same practice only after the implementation of the Government Communications Security Bureau Actis not yet clear. When the Prime Minister had the view and the Government Communications Security Bureau had the view that there was a significant question to be answered he took action. Again I will emphasise that the inspector-general has yet to determine whether the actions were legal or not legal and Crown Law advice on the matter has been received as recently as 19 March. This has been a complex process of unravelling decades of practice and decades of legal interpretation that everyone took for granted. In fact that member should be pleased that the Government has brought all these matters to the public attention and is in a position to resolve them over the next few months.Dr Russel Norman: We are idiots!Mr SPEAKER: Order! Just ask the supplementary question.Dr Russel Norman: If the Prime Minister were to find out that his Minister the Minister responsible for overseeing theGovernment Communications Security Bureau on finding out in July 2012 that there was an issue of legal interpretation as to whether the bureau was acting lawfully did not immediately seek a Crown Law opinion on that matter as he is required to under the Cabinet directions would he still have confidence in the ability of that Minister?Hon BILL ENGLISH: Well again I do not accept the member’s assertions. It is fundamentally the task of the legal advisers of the agencies to be familiar with the law. You might assume that they were familiar with the law having spent many decades interpreting and operating that law and secondly relying on the role of the Inspector-General of Intelligence and Security as an independent oversight of the intelligence agencies. The matter was raised with the Prime Minister. Subsequent action led to legal advice that the activities were legal. One might have assumed that that resolved the issue but in fact legal debate continued and 8 months later the Solicitor General produced an opinion on 19 March this year.Dr Russel Norman: Does the Prime Minister not realise that in his statement just then he exactly restated the problem which is he said that they should be relying on the internal legal advisers within those departments when Rebecca Kitteridge in her report is absolutely explicit that the Government Communications Security Bureau as a Public Service department is bound by theposition that it is the Attorney-General and Solicitor-General who have the constitutional responsibility for determining the Crown’s position on what the law is—so by relying on those internal advisers he did not follow the position that is in the “Cabinet Directions for the Conduct of Crown Legal Business 2012”?Hon BILL ENGLISH: Of course Ms Kitteridge’s report is correct in laying out that process. When there was reasonable doubt when the question became reasonably significant as to interpretation then certainly other authorities were contacted and became part of the discussion. The fact that the Inspector-General of Intelligence and Security mentioned the issue and that it was fundamentally his job to oversee it and that the legal advice at the time from the agencies was that the activities were legal may not have constituted a reason to get independent advice right then. I cannot give the member the exact timetable but Crown Law was engaged. Crown Law took many months actually to produce an opinion because it is a difficult technical area of interpretation. When there was any reasonable doubt then the Government Communications Security Bureau suspended its activities. The key point here is that the participants could not know about the mistake before they knew. When they became aware that there was reasonable doubt they acted appropriately to protect the constitutional interests of New Zealanders.Dr Russel Norman: Does he have full confidence in the Inspector-General of Intelligence and Security and full confidence that the inspector-general can provide adequate oversight of the Government Communications Security Bureau?Hon BILL ENGLISH: Yes that is a statutory role and that is why the Prime Minister has acted consistently with the statute and referred these cases to the inspector-general to make a determination.