Dunne flip flop on spy bill spooks nervous New Zealanders

Thanks to Peter Dunne’s flip flops, the Government Communications Security Bureau and Related Legislation Amendment Bill is now on track to becoming law.

The highly controversial Bill was sparked by the police raid on Kim Dotcom which revealed that the GCSB, acting on behalf of the Americans, had been illegally spying on the New Zealand resident.

The revelation led to the Kitteridge report which uncovered 88 cases since 2003 in which the GCSB may have acted illegally.

Ms Kitteridge said there were systemic problems with how the organisation worked and found that the Government Communications Security Bureau Act 2003 was inadequate and flawed. The proposed amendments to the Act are designed to tidy up these anomalies as well as make it legal for Kate Davenport the GCSB to spy on New Zealanders, subject to certain safeguards.

Both Prime Minister John Key and Peter Dunne, the man whose vote is crucial to getting the legislation passed, believe the changes improve the accountability of the intelligence bureau and the transparency of its operations. But their assurances have done little to allay widespread public concern about where any information that the spies gather on New Zealanders ends up or what it will be used for.

Given New Zealand’s membership of the Five Eyes intelligence alliance, there are real fears that spy agencies in the US, Canada, Australia and the UK will be privy to intimate details about the private and professional lives of New Zealanders.

The New Zealand Law Society, the Human Rights Commission and the Privacy Commissioner have all been vociferous in their condemnation of the new legislation. New Zealand Law Society spokesperson Dr Rodney Harrison QC says the Bill is intrusive and no clear justification has been provided for the “extraordinary extension of powers of the GCSB to conduct surveillance on New Zealand citizens and residents”.

“The Bill empowers the GCSB to spy on New Zealand citizens and residents and to provide intelligence product to other agencies in respect of those persons in a way not previously contemplated. This is inconsistent with the rights of freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act and with privacy interests recognised by New Zealand law.”

Privacy Commissioner Marie Shroff wants the government to delay the Bill, saying the Law Commission should be asked to advise on legislation covering intelligence agencies. “The effects on individuals are potentially very significant and it is important to get the legislation right.”

Ms Shroff says she agrees with some of the aims of the legislation because it needs updating to keep pace with cyber security threats. “However, it is because of the complex, dynamic environment that I believe the topic needs to be considered further and in more detail.”

For its part the Human Rights Commission believes the 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 the legislation.”

Dr Paul Buchanan, a former intelligence and defence policy analyst and consultant to US government security agencies, also has serious misgivings about the Bill. He disputes claims that it will help prevent acts of terror like the Boston marathon bombing.

“This ignores the fact that US intelligence agencies could not do so even with their massive meta datamining schemes and a tip from Russian authorities. Nor could they prevent the Fort Hood massacre even though the perpetrator was in regular email contact with an al-Qaeda leader in Yemen prior to the shooting.”

Dr Buchanan says the definition of threat to national security under which the GCSB would act is “too nebulous and broad.”

“For example, under the proposed legislation the GCSB could assist the Ministry of Primary Industries to spy on environmental activists on behalf of fishing, logging or mining interests if their interests were deemed injurious to the economic wellbeing of the nation, which can be construed as a threat to national security under the current definition of the term.”

Dr Buchanan believes a full inquiry into the New Zealand intelligence community is needed before any reforms are made to “its legal architecture, especially given that the last review of New Zealand intelligence operations occurred in the 1970s.”

New Zealander of the Year, Dr Anne Salmond, is yet another influential public figure expressing grave concerns about the ramifications of the Bill. “From everything that I can see, online, in the media and in the submission process, there seems to be overwhelming, almost universal opposition to this idea that we should move into a surveillance society where we can be watched,” she says.

“You don’t want an agency which, potentially, is under some sort of partisan political control being able to use communications in various ways – it has the potential for electronic McCarthyism.

“I spent a bit of time in the States at the end of the McCarthy era [and] one of my friends at high school had a father who had been investigated by the Un-American Activities Committee and he was someone who had done nothing wrong whatsoever.”

Dr Salmond also has a warning for journalists: “For example, as journalists if you as part of freedom of the press want to be able to protect a source, how could you do that if we turn into a surveillance society?

“Why do we need to turn into a surveillance society at all? I think this will have a chilling effect on democratic freedom – if we had a healthy democracy in New Zealand the Bill would have been shelved by now.”

In response to the critics and to get Mr Dunne on side, the government has made some changes to the Bill but they are unlikely to silence the strident voices calling for its repeal. Foremost among the amendments is a requirement that the GCSB will be the subject of an independent review in 2015 and an automatic review every five to seven years after that.

This should go some way towards placating Labour and the Greens which have been calling for an independent inquiry into New Zealand’s security services.

The other significant change states that government will have to get the support of Parliament for another Amendment Bill if it wants the GCSB to help domestic agencies other than the police, the SIS and the Defence Force.

This rules out the possibility of government departments like Customs, Immigration or Inland Revenue tapping into the spy agency’s cyber security armoury without a proper debate.

Not surprisingly, John Key, who is the minister responsible for the GCSB, is pleased with the outcome saying the Bill now represents “a balancing act between national security and doing our best to keep New Zealanders safe, and the privacy of New Zealanders”.

ADLS position

Vice-President Brian Keene QC states on behalf of ADLS:

The GCSB Bill is the archetypical confrontation between the rights of a state’s citizens to their privacy and the “Big Brother” needs (or should that be “wishes”?) of the State to protect its citizens. Neither should be allowed to comprehensively trump the other.

On the one hand, the State must not be hobbled by limiting the armoury it needs to protect its citizens. This includes the power to seek out early warnings of such threats – and these are as liable to arise from its own citizens and residents as they are from foreign nationals.

On the other hand, the citizen’s right to democratic freedom is undoubtedly undercut by wide surveillance powers being taken by the State without adequate reviews and safeguards.

Significant numbers of people are clearly not satisfied on the safeguards question. Therefore Parliament proceeds at its peril to enact the GCSB legislation with the risk that it may only last for the term of the governing party. This is an important issue which deserves at the very least a political “cup of tea” time. That will allow public institutions and bodies of standing to be more active in allaying the understandable angst of the public by better institutional protections being written into the legislation.

It is sobering to remember that this information, once captured, will be available to all subsequent governments of whatever leaning. Such long term concerns may require to be weighed up for a longer period than the present short sharp process. 

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