Kitteridge Report suggests "unclear legislation" allowed for GCSB to illegally spy on New Zealanders. But the real responsibility lies elsewhere

The Kitteridge Report on New Zealand's intelligence agency, the GCSB, is written in polite bureaucratic language but the activities it documents amount to a gross breach of the GCSB’s responsibility to the New Zealand public. There are some sensible parts of the report but Rebecca Kitteridge is too generous to the GCSB when she suggests that the problems arose in part from unclear legislation.

This is not a technical legal issue about unclear legislation. The GCSB has had a clear, long-term pact with the public. It claimed the right to spy on countries and join in wars without telling us anything about it, but it gave an assurance that it would not spy on New Zealanders. This reassurance has been repeated year after year and is
written into legislation.

I am embarrassed to say that I heard the unequivocal assurances and read the clear prohibition in the GCSB legislation, and I believed that they did not spy on New Zealanders. But it turns out they have been regularly spying on New Zealanders from before 2003 and since.

They have seriously let down the public.

Both her report and John Key have suggested that the GCSB legislation needs to change. But this call for "legislative clarification" is worryingly ambiguous. Reports now suggest Key will decide to solve the problem by permitting the GCSB to spy on New Zealanders. That is, simply making the illegal spying legal.

The GCSB's public standing is already at an all time low. I believe that legalising domestic spying, and going back on the long-term reassurances made to New Zealanders, will seriously damage public opinion towards the GCSB. The GCSB would be foolish to ask for this and the Prime Minister would be foolish to grant it.

Does the NZSIS need the GCSB's massively intrusive spying capabilities to do its job? No, it does not. Spy agencies always want the maximum powers they can get, but no sensible country would turn itself into a police state supposedly to protect its citizen’s freedoms.

It would possibly help the spy agencies to have little spy cameras in every person's home but we don't do that because the intrusion isn't justified for protecting New Zealanders. We shouldn't turn the GCSB's Cold-War-style spy equipment against New Zealanders either.

Who is to blame for the illegal spying? One of the distasteful parts of this affair is that a lot of the blame is being loaded onto the GCSB's former legal officer, Hugh Wolfensohn. This is distasteful because in the New Zealand system of government we shouldn't put responsibility on unelected public servants. But it is obvious why it
is convenient to blame him. In our system the person who should be responsible is the minister in charge of the GCSB, John Key.

If there was systemic unlawful activity inside Inland Revenue or some other government department, the proper thing would be for the minister to resign. It's called the system of ministerial responsibility, where a minister has ultimate responsibility for the actions of their department.

I think the former GCSB legal office is being publicly scapegoated because this happens to be the Prime Minister's responsibility and Key doesn't want to wear it.

But the faults in the GCSB that led to the illegal spying were not about one individual. They were about organisational weaknesses.

Secrecy has made them complacent and sloppy, and compliance with the law and faithfulness to the New Zealand public has not been taken seriously enough. The GCSB staff numbers rose by 150% in the decade after the September 11 attacks, a larger rise possibly than any other government agency. Yet with all those new staff, in a period when the GCSB was involved in the murky area of war-on-terror spying, it continued to have only one part-time legal officer.

This is not the fault of the part-time legal officer. It is the fault of the people overseeing the GCSB and making the decisions about staff and priorities. In this, all roads lead to the Prime Minister.

Right from the first publicity about illegal GCSB spying on Kim Dotcom, there has been a concerted effort by the government to try to avoid any blame or responsibility falling on Key. But that is where it ultimately belongs.

Comments (21)

by Danyl Mclauchlan on April 10, 2013
Danyl Mclauchlan

Responsibility is with Key (and Clark), sure - but my impression from Kitteridge's report is that the Inspector-General oversight system failed. These guys are former high court judges - shouldn't they have read the legislation and pointed out that it was contradictory? 

by Graeme Edgeler on April 10, 2013
Graeme Edgeler

These guys are former high court judges - shouldn't they have read the legislation and pointed out that it was contradictory?

It's not contradictory. The GCSB can help out other agencies in the exercise of their functions, including within New Zealand.

If the police or SIS are investigating foreigners in NZ, the GCSB is perfectly capable of assisting them in doing so.

by Danyl Mclauchlan on April 10, 2013
Danyl Mclauchlan

That's not how the GCSB decided to interpret the law though - they decided they were allowed to spy on New Zealanders and cited their act as proof, even though it explicitly said they couldn't. 

by Andrew Geddis on April 10, 2013
Andrew Geddis

Graeme is being deadpan ironic ... he's pointing out that there is a reading of the Act that means the apparant "contradiction" does not actually exist, thereby providing the preferable (even "right") way to interpret it. However, this is not the meaning that the SIS/GCSB/Inspector-General all chose to take - hence the unvoiced implication of his comment is that they were wrong and misapplied the law.

So, yeah ... the Inspector-General oversight system failed, raising significant questions as to whether it is sufficient (questions even Key seems to think need addressed).

by Graeme Edgeler on April 10, 2013
Graeme Edgeler

That's not how the GCSB decided to interpret the law though..

No, but when we were all discussing Dotcom, that's what the law appeared to mean to me.

The GCSB helped the police get information to enable them to conduct their raid safely. They couldn't do this because Dotcom had residency, but had he not, they could have. I thought it was odd that the police could have additional information to protect them in safely conducting raids in NZ only when the person being raided was a non-resident, as though we were more okay with the risk of police casualties inflicted by a resident.

It didn't seem to me to be contradictory. It still doesn't. There is a clear sphere in which the GCSB can assist the police and the SIS within the current legislative framework.

by Tim Watkin on April 10, 2013
Tim Watkin

So help me with this... from what we know, did the GCSB know the law restricting their ability to spy on NZers and, as Graeme's reading implies, simply stretch their intepretation of it? Or did the GCSB simply not know they weren't allowed to spy on NZers? That is, did they think that under some loophole the law wasn't as clear as everyone now says it is?

I ask because the GCSB seems to be arguing that "in hingsight' it's clear they can't do what they did, but at the time it wasn't clear. How/why wasn't it clear then?

 

by Tim Watkin on April 10, 2013
Tim Watkin

And Danyl, I haven't had time to read Kitteridge, but surely there's clear ministerial responsibility regardless of other oversight? If a DHB broke the law, say, (bad medical ops as opposed to bad surveillance ops!), regardless of what the Health & Disability Commissioner or whoever failed to do, the buck would still stop with the minister.

Or think Cave Creek - sure DOC got pinged but there were still long and insistent calls for Denis Marshall's head. Shouldn't any minister be held to account if their ministry repeatedly breaks the law?

by Graeme Edgeler on April 10, 2013
Graeme Edgeler

So help me with this ... did the GCSB simply not know they weren't allowed to spy on NZers?

My take is that the GCSB knew they were not permitted to spy on New Zealanders, but simply did not know they were spying on New Zealanders. Rather, they thought the SIS, or the Police were spying on New Zealanders, and they were just providing technical assistance.

by Danyl Mclauchlan on April 10, 2013
Danyl Mclauchlan

And Danyl, I haven't had time to read Kitteridge, but surely there's clear ministerial responsibility regardless of other oversight? If a DHB broke the law, say, (bad medical ops as opposed to bad surveillance ops!), regardless of what the Health & Disability Commissioner or whoever failed to do, the buck would still stop with the minister.


In this case I think it's reasonable for the Minister to accept the legal opinion of a (retired) High Court judge. If they tell the PM that his Ministry is operating within the law then I can't see why he shouldn't take that at face value. 

by Danyl Mclauchlan on April 10, 2013
Danyl Mclauchlan

My take is that the GCSB knew they were not permitted to spy on New Zealanders, but simply did not know they were spying on New Zealanders. Rather, they thought the SIS, or the Police were spying on New Zealanders, and they were just providing technical assistance.


Gathering 'meta-data' seems more problematic to me. In the case of SIS collaboration at least someone has signed off on an investigation at some point. 

by Jane Beezle on April 10, 2013
Jane Beezle

Sorry, Graeme - the difference between "spying" and "providing technical assistance" is not at all clear to me.

Moreso, the system is entirely without transparency.  So discussion of how the security intelligence agencies interpreted the extent of their powers is not possible - we have no information at all about the cases themselves.

As a citizen I find this situation and its direction highly concerning.  We are heading straight towards a massive extension of state power without any guarantee of proper scrutiny or transparency.  Thanks, Nicky, for grounding the discussion.  Could you please keep up your work on this on behalf of us all.

by Tim Watkin on April 11, 2013
Tim Watkin

In this case I think it's reasonable for the Minister to accept the legal opinion of a (retired) High Court judge. If they tell the PM that his Ministry is operating within the law then I can't see why he shouldn't take that at face value. 

Point taken. Which raises the question of why Neazor's still in the job. He raised broad questions, but the advice was that the GCSB were OK. Given they weren't, shouldn't he and the "legal people' who advised Key wrongly say sorry/step aside? 

by Philip Grimmett on April 12, 2013
Philip Grimmett

I love when legal minds start dancing on pin heads and splitting legal hairs. In my view,it gives credibility to the law being an a**.  The common sense, to the everyday, interested Josephine Public, is that there are very disturbing inferrences from these recent revelations.

by Andrew Geddis on April 12, 2013
Andrew Geddis

"The common sense, to the everyday, interested Josephine Public, is that there are very disturbing inferrences from these recent revelations."

I don't see why you think those of us with "legal minds" who "split legal hairs" would not agree with you. But that said, the reason that these revelations raise "disturbing inferences" is that it appears the spy agencies have been carrying out their activities without paying due care to the law that governs them. And as that is a question of law - have the agencies in fact acted in breach of the statute? - you have to expect a certain amount of legal analysis. 

Alternatively, we could dispense with the law altogether and decide everything according to common sense. What could possibly go wrong?

by Philip Grimmett on April 13, 2013
Philip Grimmett

Point taken.  Legal analysis is inevitable for academics.

" Have the agencies in fact acted in breach of the statute?" That is a question for legal judgment, if it goes to court. (and academics)

I am not suggesting that we dispense with the law all together. Only that lawyers will seek legal judgements, and not necessarily wise ones.  I'm sure you agree that the legal system is as flawed as we are. 

I am more interested in the implications of this matter for the general public. Perhaps the role of a journalist/lawyer, rather than an academic.

by George Hendry on April 17, 2013
George Hendry

Why are we spied on at all, 'legally' or otherwise?

If I want to commit a crime and believe it would be more successful if done secretly I will set out to do it that way and the public will hope that I get caught by our internal spy network - that's why we have one. But unless we assume governments never commit secret crimes, whose job is it to catch them at it ?

Is it too farfetched to assume that secrecy is a rich soil for dishonesty to grow in? Will every government allowed to have a legal 'spy community' by its citizens turn on them sooner or later?

I assume that whether or not this sort of thing has just broken into the news, people like Nicky are plugging away at it, trying to keep some of the most noxious weeds out of the democratic garden. Once we have done what gardeners do, decide which are plants and which weeds, we will need to make some effort weeding and risk getting our hands dirty.

by mickysavage on April 18, 2013
mickysavage

The Grant Wormald affidavit filed in the Dotcom case provides an insight into GCSB thinking (http://img.scoop.co.nz/media/pdfs/1303/Wormald_Affadavit.pdf).

It is clear that they thought Dotcom was not a citizen or resident and they could therefore intercept his communications.  This was a simple mistake which needs no law change to alter.

Paragraph 44 is disturbing however.  One of the GCSB spooks seemed to suggest that they could act if there appeared to be serious offending in New Zealand.  He must be talking about section 8(2)(c) of the Act which says the Bureau may perform its functions only for purposes including "in support of the prevention or detection of serious crime."

If you stretch the language of this section to make it empowering and totally ignore section 14 prohibition of spying on Kiwis then it seems at least some within GCSB think that they are authorised to spy on Kiwis if they are involved in the prevention or detection of serious crime.

Such an interpretation to me seems bizarre but I can't read Wormald's affidavit in any other way.

 

by Edward Hunia on April 22, 2013
Edward Hunia

Rebeccas review is so narrow in focus that is simply wrong.  How can such a fragmented approach to the act be recommended as suddenly ensuring the act is fit for purpose?  The act itself is so fundamentally flawed, and you guys squabble over the fringe analysis.  How can we have faith in a system, when its checks and balances mechanisms are too dumb to realise how dumb they are being?

The act gives away far more control than people are aware of; written while Bush was the president, a president well known for manipulating clauses to enable acts which ultimately lead to theft, while a world stood by and enabled him.

The wording of the act doesn't even require a thief like Bush must get creative with the interpretation to enable his ability to spy.  

All you need do to qualify yourself a person of interest is stand up for human rights in a way that biases against business (economic) interests. 

From such an act, an as an employee of the USA bureau acting in accordance with sections 7 & 8 of the act, there are at least three moves I could make to enable my legal right to spy on you WITHOUT A WARRANT in accordance with 3(e).

I haven't had the benefit of months of analysis, but I still managed at least three ways  to manipulate the act legally.

by Edward Hunia on April 22, 2013
Edward Hunia

Even an environmental concern given voice, that biases against economic benefit will qualify you eligibility to be spied on.

by Edward Hunia on April 22, 2013
Edward Hunia

Though I must admit, if I were only interested in preserving strictly New Zealand zoned interests in human rights and environmental interests, then my ability to loosely apply foreign -person, -organisation, -intelligence suddenly becomes a lot more restricted.

by Geoff Fischer on September 21, 2014
Geoff Fischer

An unsigned building in East Tamaki, Auckland, looks like a pocket edition of an NSA Data Center.   Does anyone know what function it serves?

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