9 Apr 2013

Legality of spy operations called into question

11:02 pm on 9 April 2013

A report into whether the Government's spy agency has been acting lawfully calls into question the legality of 56 operations involving 88 people.

All involved the Government Communications Security Bureau assisting either the Security Intelligence Service or police between 2003 and 2012.

In late February this year, GCSB director Ian Fletcher said a review of its operations since 2009, where it had assisted other law enforcement agencies, had found no evidence of unlawful surveillance apart from the Kim Dotcom case.

However, that did not cover operations helping the SIS or police operations before 2009.

The wider operational review by Cabinet Secretary Rebecca Kitteridge was ordered after it was revealed that the surveillance of Mr Dotcom, an internet entrepreneur and German national with New Zealand residency, in January 2012 was illegal.

In 2003, a law change prohibited the GCSB from spying on New Zealand citizens or permanent residents.

The Kitteridge report, made public on Tuesday, finds that most of the problems stem from a misguided belief that when assisting domestic agencies that rule didn't apply.

It says that GCSB operations assisting the SIS involving 83 New Zealand citizens or permanent residents since 2003 are legally questionable, as well as one police operation involving three individuals.

The report recommends that the agency needs to boost its legal expertise, including more communication with the Crown Law Office.

It also concludes that legislation governing the spy agency is not fit for purpose, and that the law should be changed to make its intent much clearer.

The report says this would also provide the opportunity for a public discussion on the powers and the functions of the GCSB and the extent to which it should be allowed to assist domestic security and enforcement.

It does some make some criticisms about staff management - finding that poor performance tends to be tolerated and problematic staff are redeployed internally - rather than being held accountable.

The report finds an organisation aversion to firing poorly performing staff, in part because of the potential security risks of disgruntled former employees.

Cases to be reviewed

GCSB director Ian Fletcher says the report shows real difficulty with interpretation of the law.

Mr Fletcher told Radio New Zealand's Checkpoint programme on Tuesday he can't say anything about the people who have been spied on, but the cases have been referred to the Inspector-General of Intelligence and Security.

Mr Fletcher said the Solicitor-General has identified a real difficulty of interpretation.

"It's really important, I think to let the Inspector-General go through the process of looking at the individual cases and reach his conclusion as to what we need to learn from that."

He said staff in his office find the idea of unlawful activity - whether by error or deliberate act - abhorrent and they have a very strong commitment to comply with the law.

Mr Fletcher said the agency is working to ensure that it is an organisation in which the public can again have trust and confidence. He accepts all of the report's recommendations and will be implementing them.

Prime Minister John Key said on Tuesday he has been assured that no arrests or prosecutions have arisen as a result of information supplied by the GCSB in the operations.

Mr Key is the minister responsible for the GCSB and said he has asked the Inspector-General of Intelligence and Security to look into every case to determine whether or not they were lawful. While he does not intend to make details of those cases public, he said he would release the findings.

Mr Key said the 2003 law on the agency is not fit for purpose and will consult other political parties about the drafting of new legislation.

Labour wants inquiry

Labour Party leader David Shearer said on Tuesday a full inquiry is now needed - not just into the GCSB - but into all intelligence agencies and the lines of accountability right up to John Key.

Mr Shearer said Labour is also concerned that the Government will use the report to ram through legislative changes without adequate political and public debate.

Sir Geoffrey Palmer, a former prime minister and former head of the Law Commission, said the GCSB is a mess and the legislation needs looking at.

Sir Geoffrey told Radio New Zealand's Nine to Noon programme on Tuesday that it has not kept pace with changes to immigration law and the internet.