ORAL SUBMISSION TO THE INTELLIGENCE AND SECURITY COMMITTEE IN RESPECT OF THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU AND RELATED LEGISLATION AMENDMENT BILL

INTRODUCTION

The New Zealand Council for Civil Liberties [NZCCL] appreciates the opportunity to appear before this Committee in support of our submission.  We commend the Committee for their decision to hold the submission process in public.

The aim of the NZCCL is to preserve and enhance the rights and freedoms of all New Zealand citizens and residents.  The nature of this particular Bill is one that seeks to validate the capacity of some New Zealand citizens or residents to spy on other New Zealand citizens or residents – a notion that is fundamentally abhorrent in our society and, we expect, in most other free societies.  Worse, this spying is to be carried out in secret, and any tangible accountability is also to be made in secret.  The Council believes very strongly that there is no genuine necessity for this kind of legislation, and that the proper course is to withdraw the Bill.

GENERAL OBSERVATIONS

NZCCL acknowledges that there is a balance to be struck between security and freedom.  While both notions are important, this Bill promotes security as the #1 priority and focuses almost exclusively on that dynamic.  There is virtually no reference to those freedoms currently enjoyed by New Zealand citizens and residents, and which are now about to be diminished by a stroke of the pen.  It sounds like some kind of “collateral damage” – something that is unavoidable in the pursuit of a so-called “greater good”.  The over-riding impression is that there is a real fear that something adverse may happen, and that everything possible must be done to prevent that from occurring.

The reality is that all of us will die some time – and almost certainly none by terrorist activity. at least in this country.  New Zealand is greatly distant from all other nations, yet there is considerable effort and engagement in a wide ranging intrusive activity, ostensibly to prevent this happening.  Or, rather, the thought that this could happen.  The focus is on the   1% possibility rather than the 99% probability that no such event will occur.

CHANGE IN PRIORITY

NZCCL believes that the legitimate order places the primary focus on freedom, with a secondary focus on security.  Freedom leads to disclosure and openness; security leads to secrecy and fear.  Without a primary focus on the preservation of the freedoms of all New Zealand citizens and residents, we all become a little more enslaved.  Those who make the rules are enslaved to the notion that this is the best, or even the only, way; those who are directly or indirectly affected by the rules are enslaved to the impact of those rules and a reduction in their existing freedoms.  In real terms, virtually all New Zealand citizens and residents fit into the latter category.  The psychological impact of “big brother” can be very real, even though this is hardly likely to be a “felt” experience for most, or at least in the short term.

The current priority as set out in this Bill is flawed.  NZCCL urges the Committee to think long and hard about the direction that you do decide to follow.  What you do now has implications [some of which are unlikely even to have been thought of at this stage] for the future.  And of course one, or a further, step in a particular direction only makes it easier and more predictable] to proceed even further along that path. Individuals become conditioned, and the capacity to think rationally and objectively becomes just a little more difficult.  As the Council stated in its written submission, the proposed end, however noble, s insufficient to justify the means.  Rather, that the means determine the end, and lawed means inevitably produce flawed ends.

LEGISLATIVE CREEP

Under the original legislation there was no capacity for members of the GCSB to spy on New Zealand citizens.  That seems very clear to us.  However, over the years and presumably through a series of tortuous interpretations, lo and behold the position is reached whereby employees of the GSCB have in fact undertaken spying activities in respect of New Zealand citizens – 89 in total..  It is all very well to conclude that “metadata was not a communication”, but that denial is of negligible value when there is no statement of what metadata actually is – which, in our assessment, is an intrinsic component associated with an electronic communication.  And, of course, all this was undertaken under a veil of secrecy.

The Inspector-General concluded his investigation after the event that there was “an arguable power” to do so, whereas he might just as easily have concluded that “there was no specific provision which authorised that activity”.  It appears that there have been no criminal or civil charges laid against any of those 89 individuals, so it is difficult to avoid the conclusion that whatever the purported justification for the decision to spy,  ultimately there was little, if any, evidence of wrong-doing.  We comment, simply, that there is a lot of resource being used in this process.

When these activities ultimately came to the attention of the person charged with exercising oversight of the GCSB, rather than criticising this activity, the explanation by those who made the decisions that they thought they were justified in their actions, seems to have been readily accepted, and the reward for having breached the legislation is to see those practices validated within a very short period of time.  It is difficult to see where there is any incentive to act within the confines of the law, and any sanction for acting outside of those confines.

NZCCL notes the quantum advances in electronic technology, and suggests that it is only a matter of time before some situation occurs or some person decides [in secret] that the capability available now or in the future be applied in the particular circumstances that have, or may possibly arise.  This even extends into the economic arena and who can guess what permutations this may produce.  A definition of “economic terrorism” looms on the horizon.

BILL OF RIGHTS ACT 1990

The S.7 Report concludes that while this Bill raises questions in respect of the rights to freedom of expression, non-discrimination and against unreasonable search and seizure affirmed in the Bill Of Rights Act, the Bill appears consistent with that Act.  “Appears consistent” is rather a luke-warm assessment.  We consider that a more unequivocal assessment is essential in a matter of such fundamental significance, rather than another “each way” call similar to that which the Inspector-General made.  If it is necessary to get into such a fine distinction, then the balance needs always to fall on the side of freedom.  When faced with the choice of “reduced risk with reduced freedom” and “freedom with minimal risk” most New Zealanders will choose the freedom rather than the reduced freedom option.

The stated objective of this legislation is to contribute to New Zealand's national security, international relations and economic well-being.  To understand who exactly benefits from this objective, NZCCL suggests that it is necessary to personalise the description.  In other words, the contribution is to individual New Zealanders and the beneficiaries are New Zealand citizens and residents.

It is difficult to see how New Zealanders in general benefit from this objective [and any statement of this aspect is carefully avoided], and it is also manifestly clear that there is no mandate for legislation of this kind. 

Moreover, this kind of data collection and storage is significantly worse than the ubiquitous CCTV cameras which monitor movements within a defined area.  That information is constrained by time, and is usually only accessible after an event, and when there is a particular reason to do so.

On the other hand data collection and storage can continue over an indefinite period.  The temptation to undertake data mining and person profiling is likely to prove irresistible.  And this can be done in secret.  No one is aware and thus there is no capacity to complain.  No one can even ascertain whether there is, or ever has been, a file relating to them.  

DISCLOSURE AND ACCOUNTABILITY

The Bill proposes that there be a change and an increase in the oversight and disclosure regime.  However, the increase is so slight that the employees of the GCSB will almost certainly continue to work according to their own rules, and provide minimal information and a sanitised account of their activities when obliged to do so.  When people work in secret, they become secretive.

The Bill proposes that reports of inquiries by the Inspector-General are to be made public, subject to withholding of sensitive information.  That is an encouraging development, and NZCCL recommends that similar disclosure also be made in relation to all unscheduled audits of compliance procedures as set out in Cl.31.

Further, Cl.19 of the Bill requires a register of interception warrants and access authorisations to be kept by the Director of the GCSB.  Full details, subject only to withholding sensitive personal information, from that register, including whether or not any civil or criminal action was subsequently taken, in respect of the 4 categories referred to in Cl.8C, can readily be incorporated into the Annual Report.

SUMMARY

The starting point for NZCCL is that this legislation is abhorrent and deserves to be withdrawn.  Realistically, however, the Council recognises that it may well proceed [particularly when those who advocate a course of action are also judge in their own cause], and in that case the Council urges additional accountability and disclosure as follows:

• a summary of the results of all unscheduled audits carried out by the Inspector-General; and
• details from the register kept in terms of Cl.19 be incorporated into the Annual Report.