PM announces next steps in response to GCSB report

Prime Minister John Key today announced proposed legislative changes to remedy the inadequacies of the Government Communications Security Bureau Act 2003, and to strengthen the oversight regime of New Zealand’s intelligence community.

Mr Key also released the terms of reference for an inquiry into the unauthorised disclosure of Rebecca Kitteridge’s compliance review of the GCSB.

“The GCSB plays a vital role in protecting the security and safety of New Zealanders,” says Mr Key.

“It has been making, and will continue to make, a significant contribution to our national security.

“However, Ms Kitteridge’s review shows difficulties of legal interpretation around the GCSB Act as well as compliance and cultural issues within GCSB.

“As a result of this, the GCSB has ceased providing support to agencies like the NZSIS and Police as it used to do and had done for more than a decade.

“It is now the responsible thing to do to clarify the legislation, to make it clear the GCSB can provide support to agencies which are undertaking their lawful duties.

“To do anything less would be to leave our national security open to threat, and as Prime Minister I am simply not willing to do that. To do nothing would be an easy course of action politically, but it would be an irresponsible one.”

Mr Key says the proposed changes to the GCSB Act will clarify its long-standing practices, so the GCSB can provide assistance to other agencies, subject to conditions and oversight.

“The clarification of the GCSB’s long-standing practices was also the purpose of the 2003 legislation:

“Section 3 of that Act made it clear that its purpose was to ‘continue the GCSB and establish it as a department of state.’

“And when the Act was passed in 2003, this assistance had actually already been occurring.”

GCSB Act proposed changes

At a high level, GCSB will retain its three main functions. These are:

• Information assurance and cyber security
• Foreign intelligence; and
• Cooperation assistance to other agencies.

However, these functions will be clarified and updated so that:

• Information assurance and cyber security will include cooperation, advice and help to both public and private sector organisations;
• Foreign intelligence will remain broadly as is; and
• Cooperation to assist other entities such as the NZSIS, NZ Defence Force and Police will be clarified to include help in the performance of their lawful duties.

“With regards to the three main functions, the Act will be amended to make it clear the GCSB can use its powers when undertaking activities in all of these areas, subject to controls and conditions.

“We intend to make it clear the GCSB can undertake activities on behalf of other named agencieswhere those agencies can lawfully undertake those activities.

“This includes the other agencies’ lawful investigations of New Zealanders.

“Section 14, which prohibits activities involving New Zealanders, will be retained but will apply only to the foreign intelligence function of the GCSB, and not to the other two functions.

“This will allow the GCSB to provide essential support to specified agencies and to undertake important work with both public and private sector New Zealanders in the area of information assurance and cyber security.

“These changes will ensure the GCSB is on a sound footing to keep doing the job the Government expects it to do in the interests of New Zealanders,” says Mr Key.

The changes would also be subject to the enhanced oversight arrangements.

Oversight regime

A solid oversight regime will help build confidence and enhance public trust in intelligence agencies.

There are five key changes proposed to strengthen the oversight regime.

1: The pool of candidates who are able to perform the role of Inspector General will be widened, by removing the requirement that the person be a retired High Court judge. This will broaden the range of experience and capability available to the role. For example, Australia’s equivalent is a former ombudsman.

2: The Inspector General’s office will be made more proactive, taking it a step further from the role it currently has, which is more review-focused. The office would be able to undertake its own inquiries more easily, and it will be expected to specifically note publicly each year its view on whether or not the agencies it oversees are compliant with the law.

The Government will increase the scope of the Inspector General’s active review programme to include a much broader range of the agencies’ activities. This will have the effect of making the Inspector General’s role more proactive.

3: The resourcing and staffing of the Inspector General’s office will be increased, and the new role of Deputy Inspector General will be created.

4: Legislation will explicitly expand the Inspector General’s work programme, including compliance audits and greater reporting responsibilities. GCSB’s own quarterly reporting processes will be tightened up.

5: The Inspector General’s work will become more transparent, through greater availability of its reports and views publicly.

Mr Key says the changes will be made by amendments to the Inspector General of Intelligence and Security Act 1996.

Inquiry

Today, Mr Key also released the terms of reference into the unauthorised disclosure of Ms Kitteridge’s report.

The Commissioners of the report, DPMC Chief Executive Andrew Kibblewhite and GCSB Director Ian Fletcher, have appointed David Henry to conduct the inquiry.

Mr Henry is a former senior public servant who has held a number of positions, including Commissioner of Inland Revenue, Chief Electoral Officer, Electoral Commissioner and Commissioner on the Pike River Royal Commission.

He has also carried out a number of reviews and assignments in the public and private sectors.

Mr Key says it is anticipated Mr Henry will present his findings by the end of May.

Terms of reference for inquiry attached as related document.