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Speech: Kennedy Graham on GCSB spying

01.04.15 - General Debate - Part 10

It is time the Government leveled with the public on the question of spying.

It is time the Government gave an honest account of how much, in what circumstances, and with what moral and legal justification it undertakes electronic interception.

Because all the public has been getting lately is a stylistically shallow assurance from the Prime Minister that he has been advised by the Government Communications Security Bureau (GCSB) that everything it is doing is within the law. That is demonstrably lame, to a point of self-contradiction. It is like releasing a murder suspect on the grounds that he told the police not to worry as he is innocent.

On something as important as the nexus between civil liberties and State power, we deserve something better than this. The Green Party recently laid a complaint with the Inspector-General regarding revelations that the GCSB has been undertaking mass surveillance through electronic intercepts of people in the Pacific region.

There are two target categories. The first is foreign governments, and the second is New Zealand citizens. Spying on Pacific neighbours is offensive. Spying on New Zealanders is essentially illegal.

The Prime Minister characteristically parsed the issue, acknowledging mass collection of data, but denying mass surveillance. Setting aside semantics and confining ourselves to logic, we would not do mass collection unless there was a contingent intent to do mass surveillance. So the distinction is meaningless. Certainly, the distinction is lost on the National Security Agency and also on New Zealanders. It is only the Prime Minister who is impressed by his own reasoning. Avoiding his resignation required a public soliloquy in the fashion of Hamlet.

In addition to spying on Pacific friends, the GCSB has extended its services on behalf of individual Ministers—spying on the Hon Tim Groser’s rivals for the World Trade Organization job. This included candidates from South Korea, Indonesia, and Brazil. That too is on the edge of the law or beyond it, as well as being offensive to those Governments.

Were they doing the same to New Zealand? In some cases, perhaps; in others, perhaps not. Either way, it is irrelevant. We are talking about our own domestic law and political integrity, which has nothing to do with reciprocity.

The Prime Minister has tossed these actions off, in that vapid, blokey way we have come to know and disown. He beamed, somewhat inaccurately, into the cameras recently, after two sessions with the Korean President, claiming the matter had not been raised, thereby displaying an ignorance of normal diplomatic protocol.

I say to the Prime Minister: “Are you not concerned by the fact that, despite your dignified assurance to the world that nations 'do not give a monkey’s', the Government of Brazil called in your ambassador for a ‘please explain’ meeting, the Solomon Islands is undertaking an investigation into who is spying on them, and Tonga has expressed its disappointment at New Zealand’s actions?”, because you should be.

Moving from the purely offensive to the potentially illegal, does the Prime Minister stand by his statement earlier this month that “The law forbids us, other than in very minor circumstances, from gathering information on New Zealanders.”?

Can he assure the public that the GCSB is not using a broad definition of the words “private communication” in the Act to spy on New Zealanders without a warrant?

If the statutory responsibility is on the parties themselves to display a reasonable expectation that their communication will not be open to an interception, will it be sufficient if, in every phone call and email from Kiwi holidaymakers in Rarotonga, they preface their communication with the words: “I do not expect that our communication is or should be intercepted.”? Will that be sufficient for the GCSB to click off the intercept?

If 71.6 percent of New Zealanders now believe their private communications are being intercepted, is that opinion poll in itself an instrumental factor in the way the GCSB would infer what a reasonable expectation must be? Is that not an indictment on poor legislative drafting?

If I am within the 28.4 percent of Kiwis who like to believe they are not being intercepted, how do I convey that reasonable expectation to the GCSB? The utterances by this Prime Minister on the issue are, in truth, not Shakespearean; they are Orwellian.