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Human Rights Foundation
of Aotearoa New Zealand
P O Box 106 343
Auckland
humanrightsfoundation@xtra.co.nz
www.humanrightsfoundation.wordpress.com
Submission to Intelligence and Security Committee on the
Government Communications Security Bureau and Related
Legislation Amendment Bill 2013
1. This submission is made on behalf of the Human Rights Foundation of
Aotearoa New Zealand Inc.
2. The Human Rights Foundation is a non-governmental organisation,
established in December 2001, to promote and defend human rights
through research-based education and advocacy. We have made
submissions on many proposed laws with human rights implications. We
also monitor compliance and implementation of New Zealand’s
international obligations in accordance with the requirements of the
international conventions which New Zealand has signed, and have
prepared parallel reports for relevant United Nations treaty bodies to be
considered alongside official reports. Though the primary focus of the
Foundation is on human rights in New Zealand, we recognise the
universality of human rights and have an interest in human rights in the
Pacific and beyond.
3. We understand that our submission may be publicly available if
submissions are requested under the Official Information Act 1982.
4. We wish to be heard in support of our submission, and ask that, if
possible, the Committee sit in Auckland for the purpose of hearing
Auckland-based submitters. In the past, video and phone links have
proved problematic and inadequate for effective discussion.
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Introductory remarks
5. Under the bill the GCSB will be entitled, among other things, to keep
under surveillance New Zealand citizens and permanent residents in
certain circumstances that are not legally permitted at present. This
represents yet another extension of State surveillance, something which
in our view requires a compelling justification.
6. This is because surveillance is of its very nature potentially highlyintrusive of the privacy of the individual. The individual’s right to privacy
is a fundamental human right recognised in the United Nations
International Covenant on Civil and Political Rights 1966 (Article 17);
which the NZ Government ratified in 1978. The High Court has recently
held that the tort of intrusion upon seclusion is a part of NZ law (C v
Holland [2012] NZHC 2155).
7. A key component of the individual’s right to privacy is the right to be
free from unwanted surveillance. In its study paper, Privacy Concepts
and Issues (January 2008), the NZ Law Commission concludes that
‘surveillance raises core privacy issues’ (para 8.114). The Commission
highlights the risk of “surveillance creep” and how individuals adjust
their ‘privacy expectations as [surveillance] technologies become
ubiquitous’ (paras 6.57-8). These concerns are highly relevant to the
consideration of any legislative proposal that would permit increased
surveillance.
8. Surveillance of individuals affects not only their right to privacy. It also
may have a chilling effect on their exercise of other fundamental rights
and freedoms, for example, the rights to freedom of expression,
peaceful assembly, and association. These rights and freedoms are
recognised both under international human rights law (ICCPR) and in the
NZ Bill of Rights Act 1990.
9. We are very concerned that this is the third time that a NZ intelligence
agency, after the discovery of illegal activities by it, has had its
empowering statute amended to make that particular type of activity
lawful in the future. The previous two occasions involved the NZ Security
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Intelligence Service, and led to Amendments in 1977 and 1999 to the NZ
Security Intelligence Service Act 1969. New Zealanders are entitled to
expect that intelligence agencies will act within the law at all times, and
that when they act unlawfully, those affected to their detriment will be
compensated appropriately.
Comments on specific clauses in the bill
Clause 4
Purpose: The 2003 Act makes it clear that the GCSB’s focus is ‘foreign’
communications. The bill removes that limitation. This is of real concern to us.
Clause 5
We welcome the new definition of ‘incidentally obtained intelligence’,
provided the obligations it places on the GCSB are strictly-adhered to in
practice (ie, under the new s14(2)). In our submission, ensuring this occurs
should be one of the priorities for both GCSB internal compliance and external
oversight.
The new definition of ‘information infrastructure’ appears to be allencompassing. This concerns us, especially the significance of this definition
when considering the proposed changes in the bill to the GCSB’s objective and
functions (clause 6).
That definition is also of significance when the provisions of this bill are
considered together with those in the Telecommunications (Interception
Capability and Security) Bill 2013. The vastly-enlarged scope of the interception
capability and security regime provided for in that bill is also of considerable
concern to us.
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Clause 6
New section 7: We note that the GCSB’s ‘objective’ is proposed to be enlarged
considerably from the current focus on ‘foreign intelligence’, ‘foreign
organisations’ and ‘foreign persons’. In our submission, the material made
public to support this major change is less than compelling.
New sections 8-8D: We are concerned that under these provisions, the GCSB’s
‘functions’ have been extended significantly.
New s8A – ‘information assurance and cybersecurity’: We recognise that
cybersecurity is a rapidly-increasing area of concern at all levels in our society.
However, we are concerned that the GCSB will now be able to provide ‘advice
and assistance to ‘any other entity authorised by the Minister’? What is meant
by ‘any other entity’ in this context? Will the ‘authorisation’ be time-limited, or
might it be ongoing (eg, in the case of an ‘entity’ like Fonterra)?
New s8B – ‘information gathering and analysis’: As currently worded, this
function appears not to be limited to ‘foreign persons and foreign
organisations’ (ie, by the use of the word ‘and’, together with the fact that (b)
and (c) do not include the word ‘foreign’). As a result, the GCSB may engage in
domestic intelligence gathering in relation to ‘information infrastructures’; a
situation in which the prohibition on the interception of the communications
of NZ citizens and permanent residents (s14) apparently does not apply. We
base our interpretation on the Explanatory Note to the bill where it is stated
that this prohibition ‘only applies to the foreign intelligence function’ (p 4, para
5). If so, we find this of real concern.
We appreciate that any GCSB activity under either sections 8A or 8B, involving
the interception of the ‘communications of New Zealanders’, will require the
joint authorisation of both the Minister and the Commissioner of Security
Warrants (s15B). We note that the Commissioner’s role has recently been
clarified by the NZ Security Intelligence Service Amendment Act 2011.
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While the Commissioner’s formal involvement in the granting of authorisations
is clearly an important safeguard, we have no way of knowing how effective it
is likely to be in practice in regard to GCSB activities.
New section 8B(1)(c)(ii): Given the sensitivity of the intelligence information
that may be communicated by the GCSB we are concerned that it may extend
to ‘any person or office holder (whether in NZ or overseas) authorised by the
Minister ...’.
We are also concerned that clause 6 of the bill does not prevent the
GCSB from providing information known as ‘metadata’ relating to the
communications of New Zealand citizens and residents. With regard to
‘intelligence gathering and analysis’ in section 8B we submit that this
needs to be clarified. For example, it is not clear that 8(1)(b) and (c) also
only apply to the activities of foreign persons and foreign organisations
(as mentioned in 8(1)(a)). In our view, this can be clarified by
restructuring the section so that (b) and (c) are clearly subordinate to
(a).
In its present wording, section 8B indicates that it is to be a function of
the GCSB to analyse intelligence about ‘information infrastructures’ etc
of New Zealand citizens and residents. This means that at least with
respect to ‘metadata’, the New Zealand taxpayer is to fund a specialised
intelligence gathering organisation to analyse its own citizen’s
communications, even where this is not part of the analysis of the
capabilities, intentions and activities of foreign persons and foreign
organisations. We would have thought that transforms the GCSB into a
hybrid version of the SIS. In our submission, s8B(1)(b) and (c) should not
apply to New Zealand citizens and residents, and should be clarified
accordingly.
If it is intended that the ‘metadata’ of all New Zealand citizens and
residents should be available for the scrutiny of the GCSB and that this
is an objective, then this is a major breach of privacy and/or transforms
the GCSB into a second internal intelligence agency. We oppose that
transformation in principle.
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New s 8C –How far does this function of ‘co-operation’ extend? It needs to be
more tightly defined. What is the possible justification for including the NZ
Defence Force?
We note that the ‘co-operation’ function can now extend to ‘any department’
following an Order-in-Council made on the Minister’s recommendation.
Theoretically any department can be added without any parliamentary
scrutiny. We do not support this bypassing of parliamentary scrutiny.
In our view, there should be detailed annual reporting of the number of times
the GCSB ‘co-operates’ with any other agency. We are concerned that unless
this is required, there is likely to be a considerable increase in GCSB assistance
to other agencies, and that no-one will be accountable for it.
Clause 7
New sections 9-9D: We welcome changes that hopefully will prevent a
repetition of the unsatisfactory appointment process of the current director
(New s9A).
Clause 9
Amended section 12 (Annual report): We would be concerned if the change
from ‘without delay’ to ‘as soon as practicable’ in section 12(2) was to result in
the Intelligence and Security Committee being less effective in its potentially
important oversight role.
Clause 11
New section 13: This section makes it clear that the GCSB’s intrusive powers
are now able to be utilised much more widely in relation to intercepting
communications and accessing information infrastructures. As indicated earlier
in our submission, we question the justification for a potentially large
expansion of the Bureau’s role.
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We welcome, however, the formal recognition in new section 13(b) of the
need to place ‘restrictions and limitations’ on both the ‘interception of
communications’ and ‘accessing of information infrastructures’; and on the
‘retention and use of information’ obtained as a result. It is essential that the
enhanced forms of internal compliance (ie, as recommended in the Kitteridge
Report); together with the enlarged forms of external oversight contained in
this bill ensure that this happens in practice.
Clause 12
New section 14: At the time the GCSB was belatedly placed on a statutory
basis (2003), the current section 14 was regarded as critical for reassuring
concerned New Zealanders that GCSB was not permitted to place them under
surveillance (ie, unless they were considered to be an agent or representative
of a ‘foreign person’). Under the new section 14 the ‘basic premise
underpinning GCSB’s operations ...’that it is not to spy on New Zealanders
unless they are considered to be an agent or representative of a foreign
person, now ‘only applies to the foreign intelligence function’ (Explanatory
Note, p 4, paras 4, 5).
Confusion resulting from the term “permanent resident”: We submit
that the term “permanent resident” in clause 12 (ie, new section 14), is
likely to cause confusion. A person who is residing indefinitely in New
Zealand is now under the Immigration Act 2009 first given the status of
a “temporary resident”. This can, upon application two years later,
provided certain criteria are met, be transformed into the status now
known as that of a “permanent resident”. The definition of “permanent
resident” in the 2003 GCSB Act now incorporates both a temporary
resident and a permanent resident by deeming in section 4 the term
“permanent resident” for the purposes of the GCSB Act to be “resident
class visa under the Immigration Act 2009”. That amendment in section
4 was made in 2009 but the use of the term “permanent resident” in
the text is confusing because any reader of the Act might ordinarily
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think it does not encompass both types of residence status. Not
everyone will think of looking at section 4.
Because of this confusion therefore it would be preferable to, delete
the words “permanent resident” and instead, given that the bill is
amending section 14 anyway, to substitute the words now used in the
Immigration Act 2009 to cover both temporary residence (allowed to
remain indefinitely) and permanent residence (allowed to remain
indefinitely no matter how long they spend out of the country).
We submit that the term that should now be used is the one used in the
section 4 definition of the GCSB Act 2003, that is, holder of a resident
class visa (and to delete the words “a permanent resident of New
Zealand”).
An alternative would be to delete the word “permanent” and just use
the word “resident”. The definition in section 4 can then read what the
term is now understood to be: “Resident” means the holder of both
types of residence class visas: temporary and permanent.
Impact on legal privilege: It is not clear whether section 14(1) overrides
legal professional privilege. Lawyers often represent foreign persons or
foreign organisations. In the course of discharging their professional
legal duties they may have communications with foreign organisations
or persons as an agent or representative.
The importance of the independence of the legal profession and the
preservation of accessibility to legal advice, is a cornerstone of our
democratic society, and of the independence of the judiciary (whose
members are chosen from the legal profession).Without that
independence, society becomes controlled by the executive and the
legislature. The independence of the legal profession is at the heart of
our notion of the separation of powers.
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If the communications of legal advisers are affected or are at risk of
being intercepted then it will have a chilling impact on the willingness of
persons to obtain legal advice. Of course, we recognise that the
privilege may be lost (eg, where there is any criminality).
To clarify this issue, we submit that a new subsection (3) should be
added to section 14:
(3) For the avoidance of doubt, subsection (1) does not
override legal professional privilege.
Clause 14
New sections 15A and 15B
As a result of the change of wording to section 14, together with new sections
15A and 15B, New Zealand citizens and permanent residents will now be able
to be under GCSB surveillance (eg, the interception of their communications),
in potentially a very wide range of situations not permitted at present. This
represents a major change to an important safeguard in the 2003 Act, which
we submit is not justified.
As indicated earlier, we recognise, however, that the involvement of the
Commissioner of Security Warrants in relation to the GCSB’s activities under
new sections 8A and 8B may be an important safeguard (new s15B).
In our submission, the Commissioner of Security Warrants should also be
involved when the GCSB is exercising its new function under section 8C. The
fact that the ‘other entity’ to which the GCSB is providing ‘assistance’ may be
acting within its lawful functions and powers, should not mean that the
Commissioner is not involved in an authorisation process of some nature, as a
prerequisite for GCSB ‘assistance’.
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Additional safeguards required when foreign intelligence agencies are
involved: The legislation needs to clarify that an interception warrant is also
required where the GCSB instruct other allied intelligence interception
agencies in any country to intercept etc the communications of a NZ citizen or
resident. For the avoidance of doubt, where the GCSB instructs an agent to
collect information that would otherwise be prohibited, an interception
warrant is required for the interception to occur.
The legislation also needs to put in place a mechanism or policy that prohibits
the onward use of information obtained by foreign intelligence/ interception
agencies and provided to their New Zealand counterparts, perhaps routinely,
the GCSB, where that information arises from communications to or from NZ
citizens or residents, or involves the analysis of their communications, internet
use etc.
Summarising both:
For the avoidance of doubt the GCSB should neither be the agent for
receiving information intercepted by other agencies otherwise
prohibited, nor should it instruct other agencies to intercept such
communications without the required interception warrant.
Clause 15
Section 16 amended: We support new section 16(1A)(b), as a clear statement
that the GCSB’s authority to undertake ‘certain interceptions ... without
interception warrant’ does not extend to the ‘private communications of a NZ
citizen or permanent resident of NZ’.
Clause 18
New s19: We welcome the provision for a register of interception warrants
and access authorisations.
New section 19A: We submit that the Commissioner of Security Warrants
should part of the ‘urgent issue’ process, unless unavailable.
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Clause 24
New section 25: Given the potentially broad scope of the new s25(1)(a),(b)
justifying retention of ‘incidentally obtained intelligence’, and in particular, its
communication to ‘specified’ others; we are most concerned that the GCSB will
now be entitled to communicate such information to ‘any employee’ of the
police; ‘any member’ of the NZ defence force; and especially ‘any other person
that the Director thinks fit to receive the information’.
New section 25A: We welcome the provision for a policy on personal
information. This is long overdue. The formal involvement of the Privacy
Commissioner in both the formulation and ongoing review of the policy is
potentially an important form of external oversight. There should, however, be
specific provision for the Privacy Commissioner to be permitted to conduct
‘unscheduled audits’ of how well the policy on personal information is working
in practice.
New section 25B: We welcome the insertion of key aspects of the Information
Privacy Principles (IPPs) in the Privacy Act 1993.
Amendments to the Inspector-General of Intelligence and Security Act 1996
Clause 29
We welcome the provision for the appointment of a Deputy Inspector-General.
We submit that the both the Inspector-General and the Deputy InspectorGeneral should be officers of parliament (cf, the Controller and AuditorGeneral; and the Parliamentary Commissioner for the Environment): and
should be appointed in accordance with the protocols and procedures
pertaining to such appointments.
If the ‘systems guardians’ of our public finances and of our environment are
officers of parliament, why not the ‘systems guardian’ of our intelligence
services?
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Clause 31
Functions of Inspector-General: We welcome the provision for an enhanced
role for the Inspector-General. The new power ‘to conduct unscheduled audits
of the procedures and compliance systems’ is especially important. We assume
that the recommendations contained in the Kitteridge report in relation to
how the Inspector-General should operate will be implemented as a matter of
urgency.
Clause 32
Section 12 amended (Consultation): We support the Inspector-General’s
expanded consultation entitlement (amended s12(2),(3)). Perhaps that
entitlement could extend to the Health and Disability Commissioner?
Clause 34
Amended section 25 (Reports in relation to inquiries): We support the
obligation on the Minister contained in amended s25(6)(a). We are of the view
that the same obligation should apply in relation to the Minister’s reporting to
the Intelligence and Security Committee in amended s25(6)(b). That is, ‘the
word ‘may’ should be replaced by ‘must’.
Clause 35
New section 25A: We submit that the Inspector-General’s entitlement to
publish should be broader and that the restrictions on non-publication should
be more limited.
Amendments to the Intelligence and Security Committee Act 1996
Clauses 37-40: The proposed changes seem very modest to us. If the
observations of the Leader of the Opposition during the first reading debate on
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the bill (8 May 2013) are indicative of how the committee has operated in
recent years, then changes of a more fundamental nature are required to
ensure a more effective level of parliamentary oversight.
Summary of our position regarding the proposed enhancement of external
oversight mechanisms: We welcome them but remained concerned whether
they will make a difference. Will they individually and/or collectively be
sufficient to ensure that serious compliance shortcomings highlighted in the
Kitteridge report (ie, the version released publicly), do not recur?
Why not use this opportunity to establish mechanisms that will be regarded
internationally as ‘best practice’ for both internal compliance and external
oversight of intelligence services? That is, use this opportunity for New Zealand
to become a world-leader in attempting to resolve the sensitive
interrelationship between security imperatives and human rights obligations
(cf, the reputation NZ gained as a world leader in other aspects of human
rights when the then National government enacted the Human Rights Act 1993
and the Privacy Act 1993).
We are very appreciative of the opportunity to present a submission on this
bill.
19 June 2013
Contact person
Tim McBride
timmcbride@xtra.co.nz
027-289-4127
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