OPINION: Legislation to bring clarity to the rules under which our spies operate is sorely needed.
Legislation to change those rules, expanding powers in the name of clarity, must ardently be resisted.
Given the intolerable shortcomings outlined in Cabinet secretary Rebecca Kitteridge's report into the Government Communications Security Bureau - including that the laws governing its spies are confused - everyone is talking overhauls.
But for neither the first nor last time, the risk of political syllogism presents itself. It's those three quick and careless steps: 1) We must do something. 2) This is something. 3) So this is what we must do.
Let's not have any over-reaching. Opposition leader David Shearer is right that the nation should be on guard against the Government using the report to ram through legislative changes without adequate political and public debate.
Ms Kitteridge's report was commissioned after the courts found that the GCSB's spying on Kim Dotcom was illegal. It makes clear that the Dotcom case was one of many, and identifies that 85 other New Zealanders were spied upon in ways that may have been illegal.
The qualification "may" is no comfort. Whether you regard the actions of the GCSB, and the Security Intelligence Service which has more authority than nous in the practicalities of tapping into electronic communications, as essentially sinister or incompetent, the report details problems they have struck interpreting laws that were drafted in ignorance of the rampant advances in communication technology of recent years.
Former prime minister and constitutional lawyer Sir Geoffrey Palmer has made the point that it is not easy for our spies to separate information they can legitimately extract, from intertwined information to which they have no right.
OK. However, the haze obscures modern methodologies rather than well-established rights, notably that our spies are not entitled to spy on our own citizens.
(Police, on the other hand, can seek and obtain authority to delve into our communications, but that's in ways for which they are meant to be later held accountable.)
The Kitteridge report paints a sorry picture of the bureau's management, culture, and resourcing. Its organisation she found too complex, fragmented, overloaded with managers, fearful of firing underperforming staff because they could pose a security risk, and isolated from the rest of the public service. Even former legal adviser Peter Wolfensohn, who is criticised, is also depicted as sorely under-resourced.
The report seems to ring more bells about dysfunction than disdain for proper lawful restraints. Just another under-resourced Government agency, misfiring under mismanaged pressures? It's because that is, in itself, a plausible enough scenario that we should be particularly cautious about accepting it too easily.
Our spies, who we do need, receive far less oversight than the rest of the public service. They need shadows in which to lurk. But the rules by which they must still be held accountable, cannot themselves be clouded. Opposition parties calling for a commission of inquiry - which would have greater powers to probe the full extent of the existing problems - must sense that as far as the public is concerned, they are at least close to proving their case.
- © Fairfax NZ News
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