First reading of GCSB BillNZ Security Intelligence Service
The aim of this Bill is to define the functions of the Government Communications Security Bureau - the GCSB - and to make legislative provision for its administration and for the conduct of its operational activities.
The Bill places the GCSB on a similar statutory footing to that of the New Zealand Security Intelligence Service.
It is important to the government that the security and intelligence agencies operate within a clear legislative framework which prescribes their powers and their accountabilities. With the Bill's introduction last Tuesday, New Zealand is taking another important step towards greater transparency in the work of the security and intelligence agencies.
I will recommend that the Bill be referred to the Intelligence and Security Committee of Parliament and that the Committee call for public submissions.
Since its creation in 1977, the GCSB has been a non-statutory organisation. The NZSIS, on the other hand, has had its own empowering legislation for more than thirty years. The NZSIS Act 1969 established the Service and through a series of amendments since that time continues to define its functions, delineate the scope of its authority, and make provision for the issue of interception warrants.
Oversight of the GCSB's activities, however, was significantly enhanced in 1996 by the passage of the Inspector-General of Intelligence and Security Act and the Intelligence and Security Committee Act.
The Bill before the House today serves to remove the distinction between the firm statutory footing on which the NZSIS exists and the less clearly defined position of the GCSB. It also enables certain myths about the GCSB to be laid to rest.
In the absence of a legislative framework for GCSB, for example, some have wrongly inferred that the Bureau's signals intelligence operations target the communications of New Zealand citizens; that the GCSB exists only as an extension of much larger overseas signals intelligence agencies; and that the Bureau's operations are beyond the scope of Parliamentary scrutiny.
For the record, I reiterate again today that the GCSB does not set out to intercept the communications of New Zealand citizens or permanent residents. Furthermore, reports of the Inspector-General of Intelligence and Security have made it clear that any allegations to the contrary are without foundation. The Inspector-General has reported his judgement that the operations of the GCSB have no adverse or improper impact on the privacy or personal security of New Zealanders.
Notwithstanding such assurances, the perception has remained in some quarters that the GCSB has been insufficiently accountable and that its operational scope has been inadequately defined. This Bill puts the position of the GCSB beyond doubt as a legitimate agency of government.
I turn now to the key elements of the GCSB Bill itself.
Principal Provisions of the Bill
Part 1 of the Bill contains preliminary provisions concerning the purpose of the Bill and relevant definitions. It makes it clear that the function of the GCSB is to collect foreign, not domestic, intelligence.
Clause Three establishes that the purpose of the Act is:
· to continue the GCSB as a department of state
· specify its objective and functions, and
· create a regime for the issue of interception warrants and computer access authorisations.
Key Definitions are contained in Clause Four
· Foreign communications - means communications that contain or may reasonably be expected to contain foreign intelligence
· Foreign intelligence - means information about the capabilities, intentions or activities of a foreign organisation or a foreign person
· Foreign person - means a person who is neither a New Zealand citizen nor a permanent resident of New Zealand
· Foreign organisation - carries the following meanings:
Ø A government of another country
Ø An entity controlled by the government of another country
Ø A company incorporated outside New Zealand or a subsidiary of such a company
Ø An unincorporated body made up exclusively of foreign persons and carrying out activities wholly outside New Zealand
Ø An international organisation
Ø A person acting in his or her capacity as a representative or agent of any of the above.
Part Two of the Bill is concerned with the organisation, objective and functions of the Bureau.
Clause Seven sets out the objectives:
· To contribute to the national security of New Zealand by providing foreign intelligence to meet the New Zealand government's requirements to protect and advance:
Ø The security or defence of New Zealand
Ø The international relations of the New Zealand government, and
Ø New Zealand's international or economic wellbeing to the extent that they are affected by foreign organisations or foreign persons
· To provide advice and assistance in the protection of New Zealand's own communications, information and computer systems, and to protect against electronic or other forms of technical surveillance by foreign organisations or persons.
Clause Eight of the Bill outlines the functions of the GCSB. Its principal function is to gather foreign intelligence in accordance with the government's foreign intelligence requirements. Intelligence is gathered both through the interception of communications and by other lawful means of collecting information, whether alone or in collaboration with other agencies in New Zealand or overseas. To carry out this function the GCSB is able to decode, decipher and translate foreign communications. It is able to examine and analyse foreign communications and to provide reports to Ministers and other authorised persons. Collectively, this function is known as signals intelligence.
A further function is to protect information produced, sent, received or held by any public authority. This function is known as information systems security.
It is important to note that the Bureau may perform these functions only:
· in pursuit of its objectives as defined in this Bill,
· to protect the safety of any person, or
· in support of the prevention or detection of serious crime.
Part Three of the Bill is concerned with the interception of communications. Clause Fourteen is particularly significant in protecting the rights of ordinary New Zealanders. It specifies that the GCSB may not take any action for the purpose of intercepting the communications of a New Zealand citizen or permanent resident, unless that person is acting in his or her capacity as a representative or agent of a foreign government or organisation.
Clause Fifteen requires the Bureau to apply for an interception warrant before physically connecting an interception device to a network, or before installing such a device in a place either without the occupier's permission or for the purpose of intercepting communications made or received in that place. This clause also requires the Bureau to apply for a computer access authorisation before accessing a computer system to which access is not otherwise authorised.
Clause Sixteen permits interception of foreign communications without a warrant in specified circumstances. This Clause simply preserves the Bureau's existing abilities to intercept such communications under existing law. It is important to note that this Clause is subject to Clause Fourteen. That is, the GCSB is not permitted to take any action for the purpose of intercepting the communications of a New Zealand citizen or permanent resident, unless they are acting as representatives of foreign organisations.
Clause Seventeen sets out the conditions for the issue by the Minister of an interception warrant. The emphasis is explicitly on foreign communications. This Clause is also subject to Clause Fourteen. Before issuing such a warrant, the Minister must consult with the Minister of Foreign Affairs and Trade.
Clause Twenty sets out the conditions for the issue of a computer access authorisation. An authorisation may only relate to computer systems of foreign persons or foreign organisations, and must be in writing. Again the Minister must consult with the Minister of Foreign Affairs and Trade before issuing such an authorisation.
Clause Twenty Three specifies that interception warrants and computer access authorisations may be issued for a period not exceeding twelve months. There is provision for their renewal.
· Clauses Twenty Four and Twenty Five are similar to the equivalent provisions in the NZSIS Act. Clause Twenty Four requires the destruction of irrelevant records, while Clause Twenty Five permits the communication to the relevant authorities of information concerning the prevention or detection of serious crime.
Part Four contains consequential and other amendments to existing legislation and revokes the Order-in-Council which permits the interception of foreign private communications at the GCSB's Waihopai site.
New Zealand uses independent sources of information such as those provided by GCSB to inform foreign, defence, economic, and trade policies. The interception by the GCSB of the communications of foreign governments and other foreign entities is a significant independent source of such information.
This Bill puts the position of the GCSB beyond doubt as a legitimate agency of government. It emphasises that the GCSB's signals intelligence functions are to be focused on meeting the government's foreign intelligence needs. It proscribes the Bureau from intercepting the communications of New Zealand citizens or permanent residents. Its aim is to define the functions of the GCSB, and to make better provision for its administration and the conduct of its operational activities. The Bill places the GCSB on a statutory footing similar to that of the Security Intelligence Service.