Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 

New Zealand Intelligence and Security Bill 2016

Submissions to the Select Committee on the New Zealand Intelligence and Security Bill 2016. What should we be concerned about?

1. The powers of the spy agencies – the Government Communications Security Bureau [GCSB] and the Security Intelligence Service [SIS] are enormously expanded from their powers in 2012.

2. Central to this expansion is the fact that GCSB spying on New Zealanders, completely forbidden before 2013, is now part of GCSB functions by legislation.

3. The Director-General of Intelligence and Security may retain and disclose to public authorities, domestically or overseas, any "incidentally-obtained intelligence", which is a loophole for mass surveillance.

4. Incidentally obtained data may be shared with other agencies in New Zealand as well as those overseas, where the overseeing Minister so chooses.

5. (a) While a more stringent warrant system is set out in the new legislation, there are potentially dangerous gaps in the law. The Bill does not require warrants to carry out "lawful activities" but these are not clearly defined. Is following a suspect ‘lawful’? Is entering a house where a crime is suspected of taking place ‘lawful’?

(b) The Bill proposes new types of warrants, targeted warrants and purpose-based warrants that are intended to enable the agencies to obtain approval to intercept communications for class interceptions. This means large groups of citizens can be targeted, especially if they can be connected to overseas activity.

The justification for the legislation is that it would enable the SIS to obtain approval to intercept communications for such purposes as identifying whether New Zealanders are fighting with ISIS in Syria, whether or not the agency knows their names. But under the new legislation the agencies can intercept the communications of one or more persons or classes of persons or of "places" (for example, the location of an ISP), or all or any communications sent from or to a nominated overseas country. Note that this would net an incredibly large number of people who have contact with a ‘suspect’.

(c) Finally, as of 2013, urgent warrants can be sought in special cases, including where someone's life is at stake or there is a serious threat to New Zealand's national security. This means the agencies can take action as long as they get a warrant within 24 hours. In the one case of this usage that has come to light, not arrest or prosecution followed, suggesting that the procedure was not properly used.

(d) The checks and balances in the proposed system are almost all ‘in house’ with sign-off being envisaged by the Attorney-General and the Commissioner of Security Warrants and the only independent oversight role for compliance is the Inspector-General of Intelligence and Security. There is still no direct and/or adequate parliamentary oversight.

[Additional note: The draft Bill sets out a new system of warrants, data sharing and oversight. A number of commentators have declared the Bill's requirements for the issue of warrants for surveillance as relatively robust. But for those distrustful of the agencies, on the basis of their given history and/or the demands of their Five Eyes brethren, there are potential problems. “‘Trust us, we know what we’re doing’ would be a more credible message if those running this system had a track record to justify the public’s faith in them. The ‘jihadi brides’ fiasco was one recent example of scaremongering by the SIS, and the Government”. [Gordon Campbell, Scoop] The Dotcom case, the Zaoui case and the recently revealed Tony Fullman case give no grounds for reassurance.

6. The Government clearly intends to discourage whistleblowers. A new offence will be created for people who hold a Government security clearance, or those given access to classified information, who wrongfully communicate, retain or copy ‘classified information’.

The proposed new section 78AA of the Crimes Act would impose a five-year jail term for passing on, retaining, or refusing to return "classified information". And it would apply this penalty not just to Government agents who hold that classified information in the course of their jobs - but to anyone who has ever held a security clearance, and over all classified information whether or not they've ever seen it before.

A large number of public servants hold security clearances in the course of their work. MPs and Ministers automatically hold such clearances. Various people in the IT sector can be required by the GCSB to obtain a security clearance in order to keep their jobs. One reading of this is that any of these people could be jailed for making a copy of, or forwarding, any articles, even by main stream media, which are based on leaked information.

7. Intelligence agency employees who encounter evidence of wrong-doing can make a protected disclosure to the Inspector-General of Intelligence and Security. But if they give information to others or the media they face a prison sentence of up to five years in jail. This presents a dire threat to anyone considering going public about activities.

[Additional note: In Australia, a whistleblower in a spy agency complained to the IG and nothing happened because, mysteriously, all the documents related to the case could not be found!]

8. The Privacy Commissioner can investigate breaches by the intelligence agencies but can only make recommendations to agencies and to the Prime Minister, which the latter is not obliged to follow.

9. SIS and GCSB operatives will be able to acquire, use and maintain “any identity information necessary to maintain the covert nature of their work and keep themselves safe” and ensure that anyone else assisting them in these deceptions is similarly exempt from civil or criminal proceedings

[Additional note: This means we trust those involved to only use their disguises within ethical and legal bounds and not for any private purpose]

10. Under the Privacy Act it is perfectly lawful for an agency such as a business holding customer information to disclose it to authorities where reasonable grounds exist for believing it is necessary for law enforcement, detecting offences and so forth. The intelligence agencies have now been added to this list. The Police are likely to produce evidence as to why they need access to information but all that is required of intelligence agencies is their say-so that the information is needed, and the information holder could be easily duped or bullied into providing the information.

[Question: Is pressuring a data holder a ‘lawful’ activity which does not need a warrant? Not even the corporate giants like Microsoft and Google have been able to resist the demands of the intelligence agencies to give out customer data. Even Sir Michael Cullen, who carried out the recent review of the Security Intelligence Service and Government Communications Security Bureau, said New Zealand's spy agencies already have "open slather" access to Kiwis' personal information through Government agencies as well as private companies including banks.]

11. Individuals cannot complain to the specialist tribunal that hears complaints against other agencies and can award damages.

12. Finally, the Bill's definitions of the GCSB’s functions incorporate widely drawn terms such as "information assurance and cybersecurity" and "information infrastructure" that cover, for example, things such as metadata and big data. There is a serious risk that the ever-expanding cybersecurity function of the GCSB allows it more access to data. Note above in 3 that the Director-General of Intelligence and Security may retain and disclose to public authorities, domestically or overseas, any "incidentally-obtained intelligence’.

14. The Chief Human Rights Commissioner David Rutherford has said the proposed changes in the Bill were "a significant improvement" with stronger authorisation for spying warrants, greater oversight of the agencies, and strengthened requirements regarding compliance with human rights law, but there were aspects of the Bill which were still a concern. "Chief among these is the definition of national security," he said.

Further Comment

Submissions questioning the existence of the spy agencies, and/or their Five Eyes partners, will be entirely ignored unless they are connected to the specific content of the Bill. Nevertheless, without cognisance of the wider issues, the detail becomes almost meaningless.

(a) There is plenty of historical and contemporary evidence to support the case that the GCSB should be closed down and its essential functions redistributed to other more transparent organisations. In criticising the new Bill we must not forget that we are putting aside the fundamental point to be addressed, and sidelining critical aspects of surveillance, civil liberties, and political control.

(b) Concentrating on our spook agencies in isolation and ignoring the incredibly large African/Indian mammal in the room essentially means much of the NZ legislation is irrelevant because of the Five Eyes integration. The big brothers ‘take it all, analyse it all’ data mission, and the ruthlessness with which this goal is pursued, means any perceived threats to the ‘national security’ of any of the partners will mean national laws are trample underfoot and our spook agencies will tow the line whether it involves breaking NZ law or not. To believe that we can legislate in isolation is intentional or ideological madness.

Background: The official version

The New Zealand Intelligence and Security Bill 2016 is the most significant reform of our intelligence agencies in our country’s history. It was introduced into Parliament in August 2016.

The key aspects of the Bill are that it:

1. Creates a single Act to cover the agencies and their oversight bodies, replacing the four separate acts that currently exist.

2. Enables more effective cooperation between NZSIS and GCSB, enhancing their effectiveness while still ensuring there is appropriate transparency and accountability around their activities.

3. Strengthens oversight of the activities of NZSIS and GCSB.

4. Introduces a single warranting framework for intelligence collection activities and tightens up the authorisation framework for granting warrants.

5. Brings NZSIS and GCSB further into the core public service increasing accountability and transparency.

6. Clarifies arrangements for the use of cover and assumed identities and immunities.

7. Sets out the role of the National Assessments Bureau in legislation for the first time.”


© Scoop Media

 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell: On Not Buying What Todd Muller Is Selling

Chloe Swarbrick is number three in the Greens Party list released this morning. Todd Muller has released his new party line-up today, which will excite everyone who still wants to know what Gerry Brownlee and Judith Collins will be up to in future. Wider point being : Swarbrick is a household name after three years in Parliament, and has been steering our cannabis laws towards a national referendum at this year’s election. Todd Muller has spent twice as long in Parliament as Swarbrick and yet – until last week – no one beyond his immediate family and friends had ever heard of him... More>>


 

National: "Todd Muller Announces Shape Of Next Government"

National Party Leader Todd Muller has announced the line-up of the next Government. “New Zealand is facing perhaps the toughest time that almost anyone alive can remember. “We are borrowing tens of billions of dollars to get us through this crisis. There ... More>>

ALSO:

Lockdown Rules: Timeline For Moving To Level 1 Needed

The BusinessNZ Network is calling for more clarity about the conditions under which businesses can move to Covid level 1. The network is concerned about large numbers of businesses that are at risk of closure if restrictions continue at the current ... More>>

Gordon Campbell: On National’s Day Of Reckoning

Congratulations. You are one of the 55 members of the National caucus being called together tomorrow to choose who will lead you to either (a) catastrophic or (b) honourable defeat on September 19, thereby saving some (but not all) of the jobs currently on the line. Good luck. Your decision process starts NOW... More>>

ALSO:


Budget 2020: Jobs Budget To Get Economy Moving Again

Investments to both save and create jobs in Budget 2020 mean unemployment can be back to pre COVID-19 levels within two years and could see the economy growing again as early as next year. More>>

ALSO:

Covid-19 Response: Law Setting Up Legal Framework For Covid-19 Alert Level 2 Passes


The law establishing a legal framework for the response to Covid-19 has passed its final reading and will become law in time for the move to Alert Level 2 tonight.
This is a bespoke Act designed specifically to stop the spread of COVID-19... More>>

ALSO:

ACT: Parliament Quits MP Cut Pay Debate To Go Home Early

“In an outrageous move, Parliament has today passed voluntary MP pay cuts and avoided any debate over whether to make them compulsory and transparent”, says ACT Leader David Seymour.... More>>

ALSO:

Trans-Tasman Bubble: PMs Jacinda And Morrison Announce Plans

Australia and New Zealand are committed to introducing a trans-Tasman COVID-safe travel zone as soon as it is safe to do so, Prime Minister Rt Hon Jacinda Ardern and Prime Minister the Hon Scott Morrison MP have announced... More>>

ALSO:

The Dig: Steady State Economics: We’ve Got Some (systems) Thinking To Do

In this time of impending economic and ecological crises, we urgently need to aim for a sustainable or ‘steady state’ economy. In order to get there, we will need to adopt a ‘systems-thinking’ outlook taking into account the interconnections of our complex world.

In short, we’ve got some systems thinking to do... More>>

ALSO:

Election 2020: Parties Get Into gear

The Green Party is pleased to reveal its candidate list for the upcoming election. With a mix of familiar faces and fresh new talent, this exceptional group of candidates are ready to lead the Greens back into Government. Using the most democratic list ... More>>

ALSO:

Insight Into Regenerative Agriculture In New Zealand

There is a fast growing movement in New Zealand that has been happening out in paddocks, fields, gardens and hill country across the nation. It is a movement that holds the promise to reshape our productive land use industries towards systems that work with the natural environment to regenerate the land. The movement is that of regenerative agriculture. More>>

ALSO:

Covid-19: Tracer App Released To Support Contact Tracing

The Ministry of Health has today formally released the NZ COVID Tracer app to support contact tracing in New Zealand. Kiwis who download the app will create a digital diary of the places they visit by scanning QR codes displayed at the entrances to ... More>>

ALSO:


Gordon Campbell: On The Dodgy Politics Of Easing Level 3

As countries around the world tentatively emerge from lockdown, a lot of political noise is being generated by politically-driven arguments that (a) the safeguards need to be lifted faster and (b) the lockdown itself was an over-reaction likely to leave lasting economic damage in its wake... More>>

ALSO:

National: No Show By Treasury Shows Govt In Full Dismissal Mode

Treasury’s last minute decision not to bother showing up at the Epidemic Response Committee shows an arrogant Government that’s happy to dismiss scrutiny, National’s Finance spokesperson Paul Goldsmith says. “Treasury Secretary Caralee McLiesh was ... More>>

ALSO:

Govt: Concern At Introduction Of National Security Legislation For Hong Kong
Foreign Affairs Minister Winston Peters says the New Zealand Government has reacted with concern at the introduction of legislation in China’s National People’s Congress relating to national security in Hong Kong... More>>

ALSO:


 
 
 
 
 

LATEST HEADLINES

  • PARLIAMENT
  • POLITICS
  • REGIONAL
 


 

InfoPages News Channels