Norman Russel: Urgent Debates — Dotcom Case—Inquiry into Government Communications Security Bureau Actions 
Text is incorporated into the Bound Volume 
Norman Russel: Urgent Debates — Dotcom Case—Inquiry into Government Communications Security Bureau Actions 
[Sitting date: 27 September 2012. Volume:684;Page:5763. Text is incorporated into the Bound Volume.] 
Dr RUSSEL NORMAN (Co-Leader—Green) 
: 
 I rise to speak in this urgent debate around Justice Neazor’s report into the unlawful activities of the Government Communications Security Bureau the GCSB. In this instance the Prime Minister has been very relaxed about the civil liberties and freedoms of ordinary New Zealanders. What we have seen is a Prime Minister who is so relaxed and comfortable that he has not done his job which is to protect the democratic rights and rights to privacy of ordinary New Zealand citizens and residents. What this case shows is that the Prime Minister who is the sole person who has the democratic responsibility to protect us from the Government Communications Security Bureau has not done his job. 
The Attorney-General gave a speech before where I believe he fundamentally gave the wrong impression about the relationship between the Minister overseeing the Government Communications Security Bureau and the Government Communications Security Bureau. This relationship is unique within all of the public agencies. The clause that is in the Government Communications Security Bureau Act—section 8(3)—appears in only two Acts. Section 8(3) appears in the Act governing the Government Communications Security Bureau and the Act governing the SIS. It states that the performance of the bureau’s functions is subject to the control of the Minister. There are no other Acts where the ministerial control is so direct than in these two Acts. The reason for that is that there is no other democratic oversight of this organisation. There is no way for Parliament to inquire into the operations of this organisation because there is no parliamentary select committee that can inquire into them. There is an Intelligence and Security Committee which is a statutory body not a parliamentary body. It is not allowed to inquire into the operational matters in regard to the Government Communications Security Bureau or the SIS. The Official Information Act is effectively useless when it comes to these organisations because they always have a strong case to deny the information you are seeking under national security grounds. 
So effectively these organisations operate in secret except for the oversight of the Prime Minister. He is the only person who has that oversight and he has manifestly failed to do his job in this case. The Attorney-General also tried to make a comparison with say for example the police or the Crown Law Office in saying that you would not want the Minister to get involved in individual cases. But there is a world of difference in the way these organisations work. If the police are seeking a warrant they go to a judge and a member of the judiciary has to approve that warrant. If the Government Communications Security Bureau seeks an interception warrant it goes to its Minister. So the Minister overseeing the Government Communications Security Bureau has to sign off every interception warrant that the Government Communications Security Bureau does if they want to put equipment in place. 
So the Prime Minister knows the individuals who are being targeted for every warrant. So it is not like the Minister of Police who does not know all the people who are being targeted by the police in terms of all their interception warrants. The Prime Minister—the Minister responsible for the Government Communications Security Bureau—knows every person who is being targeted by an interception warrant by the Government Communications Security Bureau because the Prime Minister has to sign off every warrant. Likewise he has to sign off every authorisation or warrant to intercept or put equipment on a computer. So if the Government Communications Security Bureau wants to get into your computer system the Prime Minister has to sign it off and he knows your name. If you are the subject of one of these warrants the Prime Minister knows your name because the Prime Minister is required to sign off the warrant. 
The Government Communications Security Bureau is manifestly different from the police and the reason it is manifestly different is that there is no judicial oversight. The only oversight is the Prime Minister and that is why the Act gives the Prime Minister much more intrusive powers into the operation of the Government Communications Security Bureau than it gives the Minister of Police for example into the operational matters of the police. There is no one else who is serving that role of making sure that this agency is operating on behalf of New Zealand’s national interest. 
There is a third category of intervention or interception that the Government Communications Security Bureau can do which is when it is targeting foreign nationals and it wants to intercept their communications but it does not require a bug or any of those kinds of equipment. The Government Communications Security Bureau can do that without getting anything signed off by the Minister and that was the case with the Kim Dotcom case. That does not mean that the Prime Minister can wash his hands of it. That does not mean that the Prime Minister can stand up in the House and go “Oh well it’s got nothing to do with me. I’ve got no responsibility in that respect.” The Prime Minister has total responsibility. 
In the third category of cases under the Government Communications Security Bureau Act when the Government Communications Security Bureau is intercepting communications—usually mobile phones or that kind of thing where it does not need to put in place special equipment and hence it does need a warrant signed by the Minister—it does not mean that the Minister has no responsibility to make sure that the Government Communications Security Bureau is operating lawfully because there is no one else. The only other person—and this is interesting—who has a responsibility in this respect of course is the Inspector-General of Intelligence and Security who must be a retired High Court judge. 
This brings us to the second point I would like to make which is around the role of the Inspector-General. This report today on the unlawful activity of the Government Communications Security Bureau was done by the Inspector-General of Intelligence and Security. I would draw people’s attention to the annual report of the Inspector-General from 2011 which says that in particular the Inspector-General of Intelligence and Security assists the Minister to ensure that the activities of an agency—the Government Communications Security Bureau and the SIS—comply with the law. So the Inspector-General has a hands-on operational function to make sure that the Government Communications Security Bureau and the SIS comply with the law. 
What we know because the Government has admitted it is that in this instance the Government Communications Security Bureau did not comply with the law. So who bears the responsibility? It is the director of the Government Communications Security Bureau’s primary responsibility for acting unlawfully it is the Minister who did nothing who did not make sure that the Government Communications Security Bureau operated lawfully but it is also the Inspector-General himself who in his own words assists the Minister to ensure that the agency complies with the law. So the Inspector-General himself Mr Neazor has identified in his own report that he is implicated in the unlawful activities of the Government Communications Security Bureau because he did not prevent the Government Communications Security Bureau from operating unlawfully. So given that you have to ask yourself whether the Inspector-General is the right person to inquire into the activities of the Inspector-General and the Government Communications Security Bureau. The answer can only be no. We cannot have the person who is responsible for ensuring that the Government Communications Security Bureau complies with the law being the person who also investigates whether the Inspector-General did his job. 
What did it say in the Inspector-General’s report that was released today about the Inspector-General’s role? It said nothing. It did not say whether he did his job. It did not mention his role at all. But of course it is his job according to his own report to make sure that the Government Communications Security Bureau follows the law. That is why the Prime Minister did the wrong thing when he appointed the Inspector-General to run the inquiry. We needed an independent person who does not have a conflict of interest in this case to run the inquiry. We did not need the Inspector-General to run this inquiry; we needed somebody who was independent of the process to run the inquiry. This is a fundamental principle in a democracy. 
If we are to have spying agencies who operate in secret who are otherwise not accountable to Parliament or the people whose sole point of accountability to the democratic system is through the Prime Minister then we need a Prime Minister who is applying themselves to controlling the activities of this agency to make sure they are operating lawfully—and we do not have such a Prime Minister. We have a missing-in-action Prime Minister. We have a Prime Minister who is relaxed about our civil liberties who does not care about the civil liberties of ordinary New Zealanders who get spied on by the Government Communications Security Bureau—because remember even when the Government Communications Security Bureau is operating lawfully it can intercept telephone calls between foreign nationals and New Zealand citizens and residents; it is just not supposed to use the ones on the side of the New Zealand residents and citizens. 
So we have an agency that has the right to spy on all of us and the only point of accountability is the Prime Minister and he says it is not up to him and it is not his job. Well I have got news for the Prime Minister: it is his job. The job of the Prime Minister is to protect our civil liberties in the case of the spy agencies whose sole point of democratic accountability is to the Prime Minister of New Zealand and he sits here day after day in this House and tells us it has nothing to do with him. Well it has everything to do with him and he should front up and apologise to the people of New Zealand.