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.