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Dr Muriel Newman

A Matter of National Security

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Security diagramThe Government Communications Security Bureau legislation is now back in front of Parliament. Introduced by former Prime Minister Helen Clark under urgency in 2001, the original Bill was designed to establish a proper legislative framework for the GCSB, which had been operating since its creation in 1977 as a non-statutory organisation.

In the absence of such a statutory framework, Ms Clark explained that there had been inferences that the Bureau targets the communications of New Zealand citizens. In her first reading speech, she set the record straight:

“For the record, I reiterate again today that the GCSB does not set out to intercept the communications of New Zealand citizens or permanent residents. Furthermore, reports of the Inspector-General of Intelligence and Security have made it clear that any allegations to the contrary are without foundation. The Inspector-General has reported his judgement that the operations of the GCSB have no adverse or improper impact on the privacy or personal security of New Zealanders. Notwithstanding such assurances, the perception has remained in some quarters that the GCSB has been insufficiently accountable and that its operational scope has been inadequately defined. This Bill puts the position of the GCSB beyond doubt as a legitimate agency of government.”1

The Bill languished on the Order Paper for two more years before being passed unanimously by Parliament on 27 March 2003.

It was the arrest of Kim Dotcom on 20 January 2012 that brought the GCSB and its legislation back into the public spotlight. A legal challenge was made over the legitimacy of surveillance leading up to Mr Dotcom’s arrest and a judicial review of the warrants found that those obtained by the GCSB were unlawful.

The problem boils down to the fact that while the GCSB legislation specifically prohibits the Bureau from intercepting the communications of New Zealand citizens or permanent residents, it is required by law to assist the Police and the SIS. It was thought the requirement to assist took precedence, but the judicial review found otherwise. As a result of this finding all GCSB support for domestic agencies has been stopped.

In response to these developments, the Prime Minister announced on 24 September 2012, that an inquiry would be undertaken by the Inspector-General of Intelligence and Security into the circumstances of unlawful GCSB interceptions.  A week later on 1 October 2012, the Chief Executive of the Department of the Prime Minister and Cabinet and the Director of the GCSB jointly announced the secondment of Rebecca Kitteridge, the Secretary of the Cabinet, to the GCSB to carry out a comprehensive capability, governance and performance review to ensure the Bureau was acting within its powers.

The investigation by the Inspector-General found that since the GCSB law was passed in 2003, requests to the GCSB for assistance by other agencies had resulted in warrants being issued against 88 individuals. These were for serious activities including the potential development of weapons of mass destruction, people smuggling, foreign espionage in New Zealand and drug smuggling. In 15 cases involving 22 individuals, no information had been intercepted by GCSB. In four cases involving five individuals, warrants were issued by the NZSIS and the GCSB assisted in the execution of those warrants. In cases involving three individuals, the Bureau provided technical assistance not interception, and the remaining cases involved the collection of metadata.2

The Inspector General concluded that while the law had not been breached in any of these cases, clarification was needed: “The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector-General recommends amending it.”

Rebecca Kitteridge’s review, which ended up taking six months, also found major difficulties in interpreting the GCSB Act, and she too recommended amendment.3

These two inquiries established, without a shadow of doubt, that Helen Clark’s GCSB Act was in urgent need of review.

The GCSB’s key role in New Zealand’s security and intelligence framework can be seen in the chart displayed at the top of this article from the Department of Prime Minister and Cabinet – click the image to view. There are four operational units:

  • The Government Communications Security Bureau operates the satellite tracking stations at Waihope near Blenheim and Tangimoana near Palmerston North to provide the government with advice on foreign intelligence derived from the interception and monitoring of foreign communication signals, as well as being responsible for protecting New Zealand’s key communications and information technology infrastructure from cyber attack.
  • The New Zealand Security Intelligence Service is the agency that provides the government with intelligence and advice on domestic security issues – including threats of espionage, sabotage, subversion and terrorism.
  • The National Assessments Bureau is a research organisation that monitors and assesses overseas developments, reporting any perceived threats to the government.
  • The Directorate of Defence Intelligence and Security is the strategic arm of the New Zealand Defence Force’s intelligence and security community, providing military intelligence relating to New Zealand’s overseas deployments and our defence partners.

There are two main monitoring and assessment bodies. The first is the Intelligence and Security Committee of Parliament, which has its membership and activities prescribed by law. It is chaired by the Prime Minister, with its membership made up of the Prime Minister’s two nominees – Hon Tony Ryall and ACT’s John Banks – along with the Leader of the Opposition David Shearer and his nominee, the Green’s Russell Norman.

The second is the Cabinet Committee on Domestic and External Security Coordination, which coordinates and directs the national response to any major crisis or threat affecting national security – including natural disasters, or biosecurity, health, military or terrorist threats within New Zealand or involving New Zealand interests overseas. Member of this committee cover the portfolios of Civil Defence, Defence, Foreign Affairs, GCSB, Health, NZSIS, Police, Primary Industries, Prime Minister and are John Key, Bill English, Gerry Brownlee, Steven Joyce, Judith Collins, Tony Ryall, Chris Finlayson, Jonathan Coleman, Murray McCully, Anne Tolley, and Amy Adams.

Another key role in New Zealand’s security and intelligence network is the Inspector-General of Intelligence and Security. Appointed by the Governor General on the recommendation of the Prime Minister following consultation with the Leader of the Opposition, the Inspector-General is charged by an Act of Parliament with assisting the Minister responsible for the SIS and GCSB to ensure that the activities of each agency comply with the law and that complaints are independently investigated. The current Inspector General, former High Court Judge Andrew McGechan, was appointed to the position last month.

Whenever a New Zealand citizen or permanent resident is the subject of a domestic interception warrant, the warrant must be jointly issued by the Minister in charge of the New Zealand Security Intelligence Service and the Commissioner of Security Warrants, a statutory officer established under the New Zealand Security Intelligence Service Act. The Commissioner is required to undertake a rigorous examination of the warrant application for compliance with the conditions specified in the Act before considering the application jointly with the Minister. The Commissioner is appointed by the Governor General on the recommendation of the Prime Minister following consultation with the Leader of the Opposition. The new Commissioner is the Hon Sir Bruce Robertson, a former High Court and Court of Appeal Judge, who started work on Monday.

This week’s Guest Commentator is former ACT Leader and member of the Security Intelligence Committee, Rodney Hide, who is extremely concerned at the political abuse levelled at the country’s top security agency by opposition parties:

“We live in a dangerous world. There are individuals and organisations determined to attack Western targets, and it’s neither safe nor wise to assume New Zealand is immune. The threat is global and our covert agencies must work with like agencies of other nations. That also makes people uneasy. Nonetheless, the raw intelligence that our agencies gather and share is also enabling our independent foreign policy. In critical decisions, such as whether to commit to war, our Government is able to analyse independently the raw intelligence on which such decisions are made. That, at times, has proved invaluable and has seen New Zealand take a different course from that of our allies.

“I sat for six years on the Intelligence and Security Committee. The SIS and GCSB took the committee seriously. They answered every pertinent question in full and in detail. They would come to my office on request and whenever a briefing was appropriate. In that room, behind the door, I learned of real and present threats that made my blood run cold. I know the work the GCSB did countering them.”

Nineteen changes are being proposed to the GCSB Bill that is now in front of Parliament – predominantly to tighten up the law and remove the problematic ‘grey’ areas – with further amendments in a Supplementary Order Paper.4 The changes will strengthen oversight – including through more regular operational reviews and public hearings – and severely limit the agencies which the GCSB can assist. The Bill clarifies the GCSB’s three main functions: information assurance and cyber-security to protect New Zealand’s key information technology infrastructure from cyber-attack; a foreign intelligence role to assist our allies; and the use of specialist capabilities to assist investigations by the Police, the SIS, and the Defence Force.

It is unfortunate to say the least, that a series of extraneous events have clouded the clear need to fix this legislation. The Kitteridge Report into the GCSB was leaked just days before it was due to be publicly released. The Inquiry into the leak by the former Commissioner of Inland Revenue David Henry resulted in the resignation of United Party Leader Peter Dunne from Cabinet, for failing to comply with the requirements of the Inquiry.

It was then revealed that Parliamentary Services – the organisation that runs the Parliamentary precinct including providing offices, computers, phones and security to MPs, the Press Gallery, and staff – released details of the communications between the journalist who leaked the report and Mr Dunne to the Inquiry, even though the information had not been requested. While that data was returned un-opened, the error on the part of a contractor resulted in the resignation of the general manager of Parliamentary Services. This matter has now been referred to Parliament’s Privileges Committee.

The bottom line is that the GCSB law needs updating – even Helen Clark in an interview on TV1’s Q&A on Sunday agreed. A very thorough analysis has been carefully undertaken and the changes are now in the process of being enacted by Parliament. Once in place, the oversight of the GCSB will be stronger than ever, public accountability will be greatly improved, and the organisation will be in better shape to do its crucial job of protecting all New Zealanders from the very real and serious security threats that we face.

I leave the final comment to Rebecca Kitteridge: “The time I have spent within GCSB has left me in no doubt that New Zealand needs this organisation now more than ever. The increasing threat of cyber attacks and the protective role GCSB plays is one part of this story, but GCSB does a wide range of other things that are essential to the well-being and prosperity of New Zealand. GCSB is also highly regarded by counterpart agencies for the contribution it makes to international security. It is a great pity – and quite a big problem for GCSB, in terms of public attitudes – that security considerations prevent this positive story from being told in more detail.”

This week’s poll asks:

Do you support the update of the GCSB’s legislation?

Click HERE to see the results