The controversial Government Communications Security Bureau Amendment Bill was passed into law tonight after its third reading in parliament. The National, ACT and United Future parties voted 61 for, with the remainder of the house 59 against.
The bill, commonly referred to as the 'GCSB bill', replaces existing legislation passed in 2003. It defines the GCSB’s ability to intercept the communications of New Zealanders, which is claimed to be unclear or contradictory in the existing legislation.
Much of the controversy revolves around Section 8 of the bill, which allows the GCSB to intercept and analyse the communications of New Zealanders on behalf of the NZ Police, Security Intelligence Service (SIS) or Defence Force.
The previous bill allowed the GCSB to cooperate with “other agencies”, but directly prohibited the agency from spying on New Zealanders.
The #GCSB bill just passed in Parliament against the will of most Kiwis. RIP Privacy. Payback at the 2014 election!!!
Section 14 of the bill provides this protection, but only applies to “foreign intelligence gathering”. It does not apply to surveillance for the purpose of “cyber security” or for surveillance undertaken for the NZ Police, SIS or Defence Force under warrants issued to those agencies.
The bill’s proponents claim the amendment narrows the GCSB’s power by specifying “other agencies” as only the NZ Police, SIS and Defence Force, whilst its opponents claim the bill widens the GCSB’s power by allowing it to spy on New Zealanders for “cyber security” in a way that would not have been legal under the previous legislation.
Debate has also revolved around the interpretation of the term "private communications" in the provisions of Section 14, and whether metadata (information about information, such as email headers) would be considered private or public under the new act.
Prior to the final vote in parliament tonight, Prime Minister John Key reiterated several times that "Cyber security is about protecting our secrets - it is not about spying", "The clear intention is to protect, not to spy", and that "Nothing in this bill allows for wholesale spying on New Zealanders". The sentiment was echoed by Health Minister Tony Ryall, who compared the GCSB's cyber-security function to consumer security package Norton Antivirus.
Labour Party leader David Shearer spoke against the bill, saying "This was our opportunity to lead again. That would have been a great starting point for restoring Kiwis confidence. Instead ... this bill is about simply getting across the line. It is about finding a quick remedy to a political hangover."
Shearer promised that a Labour-led government would "act on Day 1 in office to commission a full review" and "replace this law with a world-leading one that is based on the findings of that comprehensive inquiry".
Deputy Prime Minister Bill English struck out against critics of the bill, saying "What we've heard [from the opposition] is a whole lot of left-over, half-warmed rhetoric about democratic rights ... they simply have not contributed at all to settling the issues which they say are so important."
English claimed that the Human Rights commission, which has been critical of the bill, "didn't read the legislation".
He claimed that the new act offers "more cohesion, more transparency and more reliability", and that "We probably won't have to do security and intelligence legislation for a while, because this bill is better than the last one, which was better than the one before it."
The #GCSB bill just passed. 61 votes for. No national party MP crossed the floor. @PeterDunneMP has let us down. Let's not forget this day
Labour's Grant Robertson claimed the bill "undermines those core New Zealand values of democracy, independence and transparency" and that "The government and John Key have failed to make the case for this legislation ... the work has not been done to build New Zealanders confidence and trust into this bill."
He emphasised that "Section 8c of this bill allows the GCSB to cooperate with other agencies and provide support to them. ... Section 8c of this bill says that the GCSB can support the SIS, the defence force and the police in any of their functions. Anything they do, the GCSB is now able to work in this space. Section 8c is not protected by Section 14 which protects the rights of New Zealanders."
Robertson then claimed that a Labour government would "get the balance of security and privacy".
Green Party co-leader Dr. Russel Norman said the bill "is a fundamental constraint on freedom. ... It reduces our freedom to live free from state surveillance. In that respect it is a bill that reduces the freedom of New Zealanders."
He mentioned New Zealand's involvement in the Five Eyes surveillance programme led by the United States, and suggested "The global context is absolutely essential when considering this bill."
Quoting the New Zealand Law Society, Norman said: "This bill changes the GCSB from being a foreign intelligence agency to a mixed foreign and domestic intelligence agency. ... It is inconsistent with the rights of freedom of expression and the freedom from unreasonable search and seizure."
Perhaps responding to Deputy Prime Minister Bill English's earlier statement that opposition had criticised the bill but failed to solve any of the claimed issues, Norman stated "We in the Greens have consistently attempted to amend this legislation, and have put up a series of substantive amendments which the National Party has voted against."
Health Minister Tony Ryall justified the GCSB's cooperation with other NZ agencies by suggesting "we don't need to have the specialist capacity in GCSB replicated in three other agencies. In a nation the size of ours, 4.5 million people, we should not expect to have to go through the expense -- in fact, I don't know if we'd even be able to replicate the skill of the GCSB in those areas in those other agencies."
Ryall went on to address questions around the interception of metadata, claiming "Metadata cannot be separate -- there is no way for [the GCSB] to get metadata and not communications without a warrant. ... They cannot access metadata without a warrant because it's not separated from communication [in the definition in the bill]."
It is correct that metadata is not specifically defined in the bill, but Ryall did not directly address whether such data could be considered "public" or "private" based on the term "private communications".
Māori Party MP Te Ururoa Flavell expressed concern around the act's potential to be used against Māori, mentioning 'Operation Leaf' -- an SIS spy operation against Māori politicians and groups just over a decade ago.