25 July 2013

The agreement I reached with the Prime Minister over the fate of the GCSB Bill has received an entirely predictable reaction. So let me respond to the main criticisms in the most detached way that I can.

First is the claim that I have “performed a U-turn on a (a) flip-flop”. Colourful language certainly, but incorrect factually. I supported the Bill’s introduction, but indicated misgivings I wanted resolved before supporting it further. They have now been addressed to my satisfaction, so I can continue to support the legislation. Hardly a flip-flop or U-turn, but simply doing what a good legislator should – working to improve important legislation.

Then there is the claim that the changed accountability regime I have negotiated does not address my “repeated assertion that only the domestic Security Intelligence Service should be allowed to spy on Kiwis.” In fact, it does through the provisions making it clear that the GCSB can only operate domestically where it is doing so on behalf of the Police or the SIS, that there now will have to be annual public disclosure of both the number of occasions where this occurs, and the number of warrants issued, and that GCSB cannot become involved on behalf of other government agencies without the expressed prior approval of Parliament. None of those protections are in the current law, so these changes are a real strengthening of accountability processes.

Next is the argument that “there is still no mechanism in the new laws to ensure our private communications are not fed into any kind of global surveillance programme, like the NSA’s PRISM.” There is truth in that claim, but the legislation was never intended to deal with that situation, focusing instead on domestic arrangements. I think there is a legitimate debate to be had on this point, given current global revelations, and that an argument can be made for much international protocols governing intelligence sharing, but that is way beyond the scope of what GCSB does within New Zealand. But it is a separate debate, well worth having.

It is also alleged that “the changes do little to dilute the considerable influence the (P)rime (M)inister has on the oversight functions of the intelligence agencies.” In fact, there will be far greater accountability beyond the control of the Prime Minister. The enhanced role of the Inspector-General and the new advisory panel, the requirement for GCSB to operate to a set of principles including adherence to the Bill of Rights, the new annual reporting procedures including public hearings of the Intelligence and Security Committee, and the five yearly reviews of both GCSB and SIS, will all ensure that GSCB in particular and intelligence agencies generally will be operating far more transparently and with greater accountability than has ever been the case before, something that should be widely welcomed.

There is the claim that my approach to this issue has really been both a cynical ploy to curry public and political favour in the wake of the unrelated events of my Ministerial resignation and UnitedFuture’s (temporary) party deregistration, and represent the trading of “principles for pragmatics”. Dramatic journalism certainly, but both claims are incorrect nonetheless. Unlike some others, I do not operate that way. Rather, my approach has been about addressing the areas of the Bill I was concerned about – improving the oversight and accountability provisions of the GCSB; introducing more transparency into the operations of our security agencies, and clarifying the scope of GCSB’s involvement on the domestic scene. All those objectives have been achieved in the changes I have negotiated.

The suggestion that I appeared “for a time” to be “something of a privacy champion” overlooks history. I have been a privacy champion for over 20 years – indeed, in the early 1990s I drafted what became our Privacy Act, and have retained a close interest in privacy issues ever since. Indeed, it was on the principle of the protection of the privacy of communications that I resigned as a Minister. That is why I have negotiated a comprehensive work programme to update the definition of private communications (including the treatment of metadata) across a range of legislation in this area, including the GCSB and SIS Acts, the Crimes Act, and the Search and Surveillance Act. The need to do so was raised by many submissions on the current Bill, but no-one I consulted was able to provide an immediate solution, and all agreed that a more detailed work programme was needed, which is what I have ensured will happen as a priority.

For me, politics has always about the art of the achievable. In this instance, I have achieved real change which will ensure that situations like the Dotcom case, which gave rise to the Kitteridge Report which led to this legislation, will never occur again, and that is good.

However, the wider debate about the role of our intelligence services is an important but separate issue which we, as an open society, should not shy away from.   

 

18 July 2013

The Government has just released a lot of background papers about its negotiations with SkyCity over the proposed Convention Centre deal in Auckland. They offer an interesting insight in to how these things happen.

A couple of things struck me immediately about all this. First, SkyCity’s opening bids around the number of additional pokies, tax concessions, and a Wellington casino were just that – starters. No-one could have expected them to be taken seriously or to provide the basis of a deal. Nevertheless, the air of unreality that accompanied them does show that major corporates seeking to negotiate deals with Government often are way out of touch with political reality and have little understanding of how the process actually works. Many of the things SkyCity sought originally were never going to happen, so it was a waste of years even proposing them. (I do wonder what their shareholders may make of that.)

Second, the deal that was eventually struck now looks far less of the “dirty” deal its critics claim it to be. Their criticism rests on more on social concerns and perceptions of cronyism than the specific details, which given the historically political nature of gambling issues is to some extent understandable. For me, the challenge is striking an appropriate balance between social concerns about problem gambling proliferation and commercial opportunity. On the whole, I think the current proposal achieves that, which is why I support it. (I discount the Treasury’s analysis – its advice has seldom proven to be reliable in these areas, and I laugh out loud at those now lapping it up, as they are very ones to attack its advice on other areas of social concern and spending!)

This deal also raises questions about how far Governments should go in seeking to regulate people’s lives in areas that might be regarded as socially or physically dangerous. I am not a gambler, but I do not like the idea of moral rectitude interfering with people’s choices. For most, gambling, playing the pokies or whatever will always be a harmless pastime. And it is big international business. (I well recall when Minister of Internal Affairs and Revenue in 1996 being approached by international internet casino interests  offering to pay up to $500 million a year as a an equivalent to tax, in return for being allowed to use New Zealand domain names, because we were seen as corruption free, and therefore a desirable location.)

Against that backdrop, the SkyCity deal looks fairly modest!

    

 

12 July 2013

The announcement this week of a free trade agreement with Taiwan was deliberately kept at a low-key level by both the Taiwanese and New Zealand governments for fear of upsetting China, but its significance should not be downplayed.

Not only is this the first free trade agreement of its type, it also means New Zealand becomes the first country in the world to have free trade agreements with all of the entities in the broad Chinese realm – China, Hong Kong and now Taiwan. It is a huge step forward for New Zealand exporters, and the consequence will be that the already healthy economic relationship with Taiwan will grow even stronger.

As a long-time supporter of Taiwan, I am naturally delighted at this development. But I think its significance lies far beyond just the economic aspect. Since 1949, the China/Taiwan situation has been internationally awkward, with each claiming sovereignty in and over the other. Martial law in Taiwan and China’s Cultural Revolution both exacerbated the situation and led to over 50 years of diplomatic stand-off. President Chen’s Taiwan independence sabre-rattling of the early 2000s, while rocky at the time, has paved the way for the more pragmatic approach of President Ma, which has not only thawed relations between Taipei and Beijing, but has also led to a growing role for Taiwan in the international community.

The great battles of gaining a voice at the World Health Assembly and World Trade Organisation tables have passed, and China’s angry disdain for its cross-Straits neighbour has given way to respectful curiosity   and greater regard for traditional family links. Over 50,000 Taiwanese businesses now operate in China and the air lanes between the two are amongst the most heavily used in the world.

That is where the free trade agreement assumes its real significance. It is but a further example of Taiwan’s integration into the modern international environment. The New Zealand connection is important – not just because of our extremely close links to Beijing, but also because of the increasing cultural and indigenous links to Taipei.

But I do not think New Zealand’s work is yet done. Just as we have used our economic and cultural relationships with both China and Taiwan to positive tri-lateral effect, we now have an unparalleled opportunity, gently, but slowly and surely, to do likewise with our political relationships. Our Pacific partnerships could provide an example of how China’s future relationship with Taiwan might evolve.

New Zealand, China and Taiwan have shown considerable skill, sensitivity and tact in addressing the issues surrounding the economic relationship. Now is the chance for working together to achieve similar progress on the political front.

After all, New Zealand, like Taiwan, is a small thriving island democracy living in the shadow of a larger and more dominant neighbour, with whom we share similar values. And we have worked out how to succeed more often than not. And we are frequently how much we “punch above our wegiht”!

I am sure we can do likewise in helping Taiwan with its large neighbour, our apparent new best friend.

9 July 2013

The circus surrounding Kim Dotcom’s appearance before the Intelligence and Security Committee dominated the debate over the GCSB legislation.   

But the issue goes beyond his confrontation with the Prime Minister. As current international events have shown, the extent and purpose of surveillance has become far more widespread that many of us would have previously contemplated. From Edward Snowden’s disclosures, to reports that the United States spied on the leaders of other countries at international gatherings, or even the local variant of the access given during the recent Henry inquiry to Andrea Vance’s and my metadata and movements in and around Parliament, the pervasive nature of surveillance has been thrust into the spotlight.

A couple of things emerge from this. First, there are very few people arguing that that such surveillance should never occur, especially in cases involving crime or national security. But second, and certainly more important is the reality that there needs to be greater awareness and tighter controls and accountability of what is going on. Surveillance, regardless of the agency undertaking it, has to be appropriate to the circumstances, and not just the default position. Keeping an eye on people who pose a genuine criminal or national security threat to the country arguably fits that bill, but snooping on MPs and journalists in a low-level inquiry into the early release of a report most definitely does not.

The Bill of Rights Act and the Privacy Act are supposed to protect personal privacy and the right to freedom of movement and communication, and that principle needs to be re-asserted strongly. As a start, Parliament needs to offer explicit protection to MPs, journalists and the public going about their normal business in the Parliamentary complex. The type of surveillance and intrusion recently experienced should never be allowed to happen again. And beyond that, all residents and citizens need to be protected from being casually spied upon as they go about their normal lives.

In this context, the “why worry if you have nothing to fear” argument is specious. Personal freedom is the most precious thing we have, and, as I said in my resignation press conference, we acquiesce to any assaults on that at our collective peril.

Pastor Martin Niemöller’s famous lines from 1930s Germany powerfully state the challenge all democratic societies currently face in this space:

            “First they came for the Socialists, and I did not speak out – because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out – because I was not a Trade Unionist.

                Then they came for the Jews, and I did not speak out – because I was not a Jew.

                Then they came for me – and there was no-one left to speak for me.”

To ensure there is always some there to speak for us and that we can go about our lives freely and openly without the threat of unwarranted surveillance, our security services need to be made far more accountable, and the incidence of surveillance at all levels limited to cases of genuine threat, rather than continuing on a casual, low-level, “nothing to worry about” basis, as recent events here have shown.