An intelligence merge is not new
An intelligence merge is not newAnnemarie Thorby
It was only a few years ago that there was talk of merging the intelligence agencies. It was in 2009 and a Treasury official's notebook was found in central Wellington. Written in the pages were comments about a merge. A review of the NZSIS, GCSB and the then EAB (External Assessments Bureau) was being conducted. After questioning about the notebook, John Key confirmed a merge was an option. “I drove the decision to have a look (at how they operate) because there is quite a bit of crossover.” Value for money was also an issue he said.
Maybe we are closer now to having that merger. In all but name the Intelligence Review recommended a merge. The proposal put forward by Sir Michael Cullen and Dame Patsy Reddy is to consolidate legislation governing the GCSB and NZSIS into one Act.
Both agencies operating under a single comprehensive Act would ensure the agencies have the same purpose, same processes, same functions, same powers, same over-sight and even the same single co-ordinator. All the modern surveillance tools could then be shared inter-agency; it would also save time and money consolidating the powers, just like John Key mentioned back in 2009.
Maybe Cullen and Reddy also assume it would solve the embarrassment of the GCSB breaking more laws. With the GCSB allowed to collect data on anyone and everyone and not to be curtailed by the distinction of external and internal 'national security threats', and with both agencies operating under the one law, it should be easier for the agencies to behave 'arguably legally' most of the time (to use the words of the Inspector-General of Intelligence and Security in 2013 when describing the GCSB's behaviour).
Past experience has intelligence agencies acting often illegally. We need to only recall the fall-out after the raid on Kim Dotcom in 2012 and then more recently the confirmation that the GCSB has been spying on the Pacific and everyone residing, passing through or holidaying in that area. Also recall the SIS being caught breaking illegally into a house in 1996. And when a law is found to be broken, the usual reaction is to have an inquiry or review and then change that law.
One excuse given by Cullen for the difficulties the agencies have in following the law is that the current legislation is 'muddled' – but a lot of that muddled legislation has been rushed through in the last few decades despite people (including the Law Society, Rodney Harrison QC, Dame Anne Salmond, the Privacy Commissioner and people like myself) saying 'no'. It also includes legislation passed under Cullen's watch when he was a MP.
Examples include the Terrorism Suppression Act, Maritime Security Act, Border Security, Aviation Security Act, the SIS Act, the Police Act, the Search and Surveillance Act, the GCSB and Related Legislation Amendment Act, and the Telecommunications Interception Capability Act. All passed in the name of security.
And now we face yet another round of legal changes. This time a law that would remove the boundaries between the agencies and increase their abilities to routinely surveill anyone and all (with a token nod towards oversight and accountability).
Cullen says the changes they are proposing 'are not a vast extension of power…it is a clarification'. He is right in a way, the proposals are actually only steps along a path already started. The far from independent Intelligence Review is part of the pattern of ever-increasing powers of the intelligence agencies and the widening ambit of surveillance. The Intelligence Review did the job it was meant to do – expand surveillance powers.
This was never an independent review. Cullen and Reddy are not independent, both are consummate insiders. Last year when we first learnt of their involvement, the Review was described as 'hobbled before it begun'. Cullen is a former member of the Intelligence and Security Committee and Reddy is a state-sector lawyer and much flaunted board member.
Their terms of reference assumed the necessity and legitimacy of the intelligence agencies. It did not question the purpose or practice of surveillance. Nicky Hager said, 'It was a cooked-up process that got them the things they wanted.' And the government will get the things it wants.
What would have been better is to have a truly independent review that asked one serious question – what is the role of surveillance in society?
But we did not get that.
We got instead recommendations to have a de-facto merge of the GCSB and NZSIS to save money and time.
The proposed consolidation will see an expansion of surveillance and data-sharing between all agencies, not just the GCSB and the SIS. Long-term perhaps we will be joking about even the Pork Board having access to the GCSB's modern tools. More about that will be known after the Law Commission's current examination of the Search and Surveillance Act is made public.
But first the Intelligence Review will be discussed in Parliament. Chris Finlayson, the Minister in Charge of the New Zealand Security Intelligence Service, says the new legislation could be drafted by July 2016.Then there will be chances for people to send in submissions and participate in (as described by Finlayson in 2014) mere chit-chat with the select committees.
We already know that chit-chatting with the select committee is a waste of our time and energy.
Rather than engaging in debate with the government about the 107 recommendations of the review, what is needed is debate on surveillance and its role in society.
To hark back to what the Law Commissioner said in 1991, 'The danger is that States will over-react… [I]t is possible to imagine government officials doing more to destroy democracy in the name of counter-terrorism than is presently likely to be achieved by terrorists themselves.'
Well, they have over-reacted.