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Q+A: Corin Dann interviews Russel Norman

Published: 2:02PM Sunday July 07, 2013 Source: Q+A

CORIN DANN

Good morning, Dr Norman.

RUSSEL NORMAN - Greens Co-Leader

Morning, Corin.

CORIN Do we need a GCSB?

RUSSEL Well, I think we need an inquiry to look into exactly what we do need. So, do we need a GCSB and an SIS? If we do need some of those functions, how should it be established? What should the accountabilities be? That's why we've argued all along that we need an inquiry that starts with first principle.

CORIN You've sat on this Intelligence and Security Committee for some time now. Without telling us what you're told in the committee because its top-secret, you must be aware of whether there's a threat that justifies us having a GCSB.

RUSSEL Well, we're not actually told that much, to be honest. I mean, that's the whole problem with that Intelligence and Security Committee is that its oversight function is very constrained. So unlike other jurisdictions, we have very limited ability to ask questions. They don't have to answer our questions, and we can't talk at all about operational matters without their permission. So we don't really know that much.

CORIN Is it just a case of oversight then? If, for example, the Prime Minister was to come back and say, 'Look, we're going to substantially boost the oversight of this agency. We're going to have the three-person panel that Winston Peters wants. We're going to go even further and give them more powers.' Could that be enough?

RUSSEL I don't think so. So, if you look at particularly the Law Society submission, but also InternetNZ's submission, they're both really good, and what they both were saying was this turns what was an external spying agency into one that's external and internal. And it also, when you read the legislation in a broad way, gives the GCSB pretty much carte blanche to do mass surveillance.

CORIN How? Can you explain to me how it does that?

RUSSEL Well, under the new sections that they've been given, 8A and 8C, there's basically very few constraints under those sections in terms of their ability to spy on New Zealanders. There's enormous leeway there.

CORIN Well, are you talking about the cyber security provisions?

RUSSEL It's cyber security, but if you look at the definition of infrastructure, information infrastructure within 8A, that's section 8A, what it defines is it's very broad information infrastructure and also the communications that are carried on that infrastructure. So they have very broad powers to delve in.

CORIN But they require a warrant, right, with two signatures?

RUSSEL Uh, not if they're looking at foreign. So if there's a foreign part of the communications, they don't need a warrant.

CORIN But if they come across NZ communications in the process of spying on a foreigner, they need a warrant to go further with that NZ communications?

RUSSEL They need a warrant if they're intercepting NZ communications. That warrant has to be signed by the Prime Minister and then by someone appointed by the Prime Minister called the Commissioner of Security.

CORIN And that's not going to happen easily, though. I mean, some of the stuff that you and other opponents of this bill have been saying, 'This will allow them greater powers to break into our houses, to put bugs into our houses and listen to our phone calls.' It's not going to happen without oversight and without warrants, though.

RUSSEL So, if the Law Society and others are right, that this law is very enabling and creates great powers for this agency to get into all of those kinds of communications, then it doesn't really matter that you have all these oversight mechanisms because the oversight will be required to tick it off. If it's lawful for them to get into all our communications, then, actually, the oversight groups will need to sign it off and agree to it. They have to tick it off.

CORIN But why are we assuming if it has to be lawful and there has to be a warrant that it isn't justified?

RUSSEL Well, because they've turned it around. So, in the past, it used to be that we said individual privacy is protected, and if the state wants to intrude on individual privacy, they have to go to court, they have to produce reasons why they should. This legislation turns it all around, and it says, 'No, the default position is they have access to all of that information.' And, actually, they've required all the submitters to the select committee to say, 'Oh, you've got to justify why we should defend privacy.' That's the wrong way around. Our privacy, individual privacy is where we start, and if the state wants to intervene on our privacy, read our emails, look at what we're doing on the internet, they've got to have a really good reason.

CORIN Could there not be provisions that, say, require how long they can hold on to that information? They have to get rid of it after a certain amount of time.

RUSSEL There could, but why on earth would you want the state to be trawling through and collecting all that information in the first place?

CORIN Because it's doing it in the interests, presumably, of our national security and our economic security and to ward off a cyber threat that apparently is real.

RUSSEL So just to follow through the logic of that. So we're going to collect all of the information about everything you and everyone else does online all the time, put it in a big warehouse somewhere and keep it just because at some point we might want to access it. I just don't think I want to live in a mass-surveillance society.

CORIN How long are they actually going to keep it? Because they do have to keep that information in accordance with the Privacy Act, and there are restrictions on how long they can hold that information.

RUSSEL There are some constraints on it, but the problem with the legislation, the change in the legislation, is it gives them prism-type powers, if it's read broadly, to access and hold that information. And remember we wouldn't be in this situation if they hadn't read the previous act pretty broadly. So, the previous act had a very specific prohibition on spying on New Zealanders, all right, which was referred to in the debates in the House. Tony Ryall in the House said, you know, "They're not allowed to listen to New Zealanders' calls." GCSB decided the law did allow them to do it. And so they read the previous act very broadly. There's nothing to say they won't read this new act very broadly.

CORIN Well, there could be. There could be much, much tougher oversight on them.

RUSSEL Not if the law says it's ok to do it. If the law says it's ok to go in and do mass surveillance, if that's what the law means, then the oversight groups will necessarily have to tick it off.

CORIN Of course, the government doesn't believe that it is giving them more powers. It says effectively what's happening here is that the parts of the GCSB which do the surveillance are just being outsourced to the police, the defence force, the SIS, whoever needs them. So, theoretically, if this law wasn't passed, we could just set that technology up in the police force, and then they could do it.

RUSSEL And so that's the 8C part of the new act, or the changes to the act. And so 8C says the GCSB can act on behalf of all these other agencies. There's a sum list, but it can be added to by the Prime Minister whenever he wants. And what that means, though, is that when the police are then doing that kind of work and the GCSB's working for them, that suddenly part of the whole police investigation is veiled in this cloud of secrecy, because it's very had to find out what the GCSB does. So one of the few people is Kim Dotcom. He found out because he had so much money to take them all through the courts to find out what the GCSB were up to. And the GCSB, remember, tried to stop it. They tried to get a ministerial certificate signed by Bill English to stop their role being revealed in court, all the kind of stuff. So it makes it so much harder for ordinary citizens who are being investigated to find out.

CORIN Why aren't ordinary citizens in the streets protesting about this bill if it is what you say? Where's the level of concern?

RUSSEL Well, I mean, I think people are pretty concerned about their privacy. But I think it's a complicated piece of law. People think, 'Oh, it's about Kim Dotcom.' Actually, this is about all of us. And there's another thing about this which I think isn't really fully appreciated. This isn't like the police. Like, the police are at an arm's length from the minister. The minister can't direct the police to do things, go and spy on that person, prosecute that person, whatever. The GCSB is absolutely under the direction of the Prime Minister. He controls it. So this is his own agency, and so that's why it's so much more dangerous to democracy, free speech and privacy because the Prime Minister of the day directly controls this agency.

CORIN What would it take for you to support this legislation?

RUSSEL Well, the key thing is we've got to go back and do a proper inquiry. I mean, I think the legislation is flawed. It's fundamentally flawed.

CORIN What if an inquiry was built into the law, that it had to have an inquiry every couple of years?

RUSSEL Well, I think let's have an inquiry and then let's look at what kinds of legislation is needed and then we go and do the law. You don't do it the other way around. We don't go, 'Oh, the GCSB broke the law so we're going to change the law to suit the GCSB.' You go, 'Actually, we're going to design the law to do what we think is right, and then the GCSB has to work within in it.'

CORIN So you can't support this bill as it is?

RUSSEL I think it's deeply, deeply flawed.

CORIN Russel Norman, thank you very much for your time.

RUSSEL Pleasure.

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