Significant amendments to the law governing the GCSB (Government Communications and Security Bureau) are presently at the select-committee stage. The current law allows the GCSB to cooperate with other law-enforcement agencies, but prohibits it from spying on New Zealanders. The amendments, however, would allow the GCSB to side-step that prohibition when cooperating with those other agencies, namely, the NZ Police, the SIS and the defence forces. Should we be worried about this? After all, why not let the GCSB contribute its intelligence-gathering capabilities to assist the Police in detecting serious crime being committed by New Zealanders? We can, therefore we should...
Well, there's an old principle – which I guess goes back to John Locke – that, in a democracy, we are policed by consent. That is, if the people are to consent to the state's policing them, then the powers of the state should intrude no further than the community regards as necessary for their own protection. In the normal course of policing, when charges have to be laid and prosecuted in open court, this balance can be struck following public debate about the law and its enforcement. The trouble with agencies such as the GCSB and the SIS, however, is the necessity of their operations being kept secret. How can we consent to that which we cannot see?
I guess that most New Zealanders accept that there has to be such a secret service, and that, if we want the protection of allies, we need to play a part in international spy networks. Probably most would agree too that there are many international and local threats to our security, and that, to prevent, say, cyber-attacks or passport fraud, there needs to be surveillance that covers domestic and foreign persons and networks. I hope too that most of us would insist that, even if such things have to be done secretly, there is at least some effective independent oversight and warranting.
It's not my intent at the moment to declare where we should draw the line. But, as we cannot truly consent to that which is done (on our behalf) in secret, and, as there's a risk that policing powers, once granted in law, may be stretched as far as (if not further than) the law strictly allows, we should think carefully about the present amendments. At the very least, one would want a strong majority of consent in Parliament – but so far there is no assurance that the amendment Bill will pass.
Process really matters here. What appears to have happened is this: The GCSB was caught with its pants down, acting unlawfully and lacking even a proper framework for compliance with the law. Rather than own up and change their ways, they have declared that the law is 'incorrect' and ought to be changed to accommodate what they actually do. This sounds like a confession that they do not see their job as upholding the rule of law, but instead as acting on the grounds of sheer operational necessity, and, if necessary, treating the law as an ass. Trust us, we know what we're doing...
New law to legitimate what the GCSB has actually been doing anyway has now been hastily drafted, without full consultation with Parliamentary parties. (Keep in mind that the leader of the Opposition may well one day be the minister responsible for GCSB).
Parliamentary consent will be hard-won over this amendment. But, worse, public consent to a whole new era of legalised surveillance of the New Zealand public has not been sought, let alone won, either.