The revised spying bill became law in New Zealand on the 21st of August. Labour and the Greens have promised to repeal the legislation if they capture the Treasury benches in 2014. A local blogger has helpfully completed a comparison/contrast chart between the legislation it replaced and new amendments.
The old legislation was drafted in haste by the Labour government (with concurrence from other parties) whilst the threat of planes flying into buildings was a decided risk. It was during that mad time when not enough was known about Islamic terrorist groups and their methodologies, tools, and techniques. Therefore, the risks were larger in the popular imagination than in reality. Legislation drafted in fear and passed in haste is usually rued by those suffering the indignity of having to submit to it. So it was in this case. It turned out lawyers could not understand parts of it; the text of the law was equivocal in others, contradictory in yet other places. As a consequence, the Government Communications and Security Bureau (our version of the National Security Agency ["NSA"] in the United States) subsequently broke the law, apparently because it mis-interpreted it.
The new legislation tidies a lot of that up, removing confusion. In addition, and most importantly, the replacement legislation contains far more checks and balances than Labour's panicked legislation back in 2003. It is thus a far better piece of law. Citizens in the US must be green with envy when they compare and contrast our legal protections with those which don't exist in the United States.
Below is the comparison/contrast chart:
| Helen Clark GCSB law 2003 | John Key GCSB law 2013 |
| Inspector-General sole independent oversight | Two person advisory panel to assist the Inspector-General of Intelligence and Security |
| Inspector-General has no staff resources | Inspector-General has a Deputy |
| Inspector-General role is essentially reactive | Inspector-General to proactively annually review GCSB procedures, policies and compliance and do unscheduled audits |
| Inspector General not informed when a warrant is put on the register relating to a New Zealander | Inspector General is informed when a warrant is put on the register relating to a New Zealander |
| GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist “any public authority” on any matter relevant to their functions, and unclear if the former prevents the latter | GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist (only the) Police, Defence Force or SIS even if it involves a NZer. |
| No reporting of assistance given to other agencies | GCSB will be required to report annually on the number of instances when it has provided assistance to the Police, SIS or NZ Defence Force |
| No reporting on number of warrants and authorisations | GCSB will also be required to report annually on the number of warrants and authorisations issued |
| Intelligence and Security Committee has secret hearings to discuss the financial reviews of the performance of the GCSB and the SIS | Intelligence and Security Committee will hold public hearings annually to discuss the financial reviews of the performance of the GCSB and the SIS |
| ISC does not have to publicly report to Parliament | ISC to report annually to Parliament on its activities |
| No regular reviews of GCSB | An independent review of the operations and performance the GCSB and the NZSIS and their governing legislation in 2015, and thereafter every 5-7 years |
| GCSB has a function to protect any information that any public authority or other entity produces, sends, receives, or holds in any medium | GCSB function to protect any communications that any public entity processed, stored, or communicated in or through information infrastructures |
| No specification of limits of GCSB assistance | Specifies that GCSB can assist Police, Defence Force and SIS, but only for lawful activities such as where warrants have been granted |
| IPCA has no jurisdiction | Gives the IPCA and the IGIS jurisdiction to review any assistance given to Police and SIS respectively |
| No references to according to human rights standards | Specifies all functions of GCSB must accord with NZ law, and all human rights standards recognised by NZ law. |
| No references to not undertaking partisan activity | Specifies GCSB can’t be involved in any action that helps or harms a political party |
| No requirement to brief the Leader of the Opposition | GCSB Director required to brief Leader of Opposition regularly on major activities of GCSB |
| Requires GCSB to destroy any records not relating to GCSB objectives or functions | Required GCSB to not retain any information on NZers collected incidentally as part of foreign intelligence operations unless relates to serious crime, loss of life or national security threats |
| No special protection for legally privileged communications | Legally privileged communications explicitly exempted from scope of an interception warrant |
| No requirement to have a policy on personal information retention and use | GCSB required to work with Privacy Commission to have a policy on personal information retention and use |
| No restrictions in GCSB Act on retaining personal information | GCSB can only retain personal information for a lawful purpose, and can’t keep longer than required for any lawful purpose |
It is clear that the intelligence gathering agencies of state are today far more controlled, checked, and balanced than was the case previously. Under the previous law, the GCSB had no restraint on which agencies of government it could assist. Conceivably, it could have assisted Inland Revenue to surveil any and all citizens. No warrants were required. Moreover, and of great importance, the GCSB cannot hoover up mass electronic data upon citizens and store it in data-warehouses, just-in-case it should be needed some time in the future.
No spying legislation is perfect. The current (new) law is certainly not. But it is far, far better than the mess of pottage it replaces.
Only revolutionaries, radical ideologues, and mindless sheep would object.
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