Emails not necessarily private – Sir Michael Cullen

Speaking to TV One’s Q+A programme this morning, former deputy Prime Minister Sir Michael Cullen said it’s not the case that every email sent by a New Zealander will be protected from surveillance.

In an extended two-part interview with our political editor Corin Dann he said “it depends how many people I’ve sent it to and what the context of that may be.”

“So how do we cast in the law in a way which copes with this changing kaleidoscope of privacy, which is indeed what we have in the present age.”

RAW DATA: Transcript: Sir Michael Cullen interviewed on Q+A

SIMON DALLOW         Former deputy prime minister Sir Michael Cullen has been appointed to head up the first ever review of our intelligence agencies, along with lawyer Dame Patsy Reddy. They'll examine the law governing the GCSB and the SIS and decide whether there are enough safeguards to ensure the agencies are acting lawfully and maintaining public confidence. There are two parts to this interview. In the first, Sir Michael talks about the spy review, and in the second, he gives his verdict on Labour's week and what it must do to win power again. So political editor Corin Dann began by asking how important is the intelligence inquiry to public confidence?

SIR MICHAEL     Oh, I think it’s quite important in that context, and undoubtedly the events over Kim Dotcom, for example, and some other examples have undermined confidence in the agencies, a little unfairly now because they’ve both got new heads, both bringing a much more open attitude to how those agencies operate. But it’s still appropriate to look at that and to look at all the balances which have to be struck in security legislation and the operation of that legislation.

CORIN DANN          Because the big concern and the big political debating point, whatever, has been around mass surveillance, both here and in many Western countries around the world.

SIR MICHAEL     Yes.

CORIN DANN          Can you address the issue of mass surveillance and give New Zealanders an extra layer of confidence, if you like, that there isn’t mass surveillance of their communications?

SIR MICHAEL     We can look at the nature of what surveillance powers are, and that, of course, includes the surveillance of so-called metadata – data about data, what all your phone calls are, rather than what’s in the phone calls to put it simply, as one might. It’s interesting in that light that the US congress recently has reduced the powers of their agencies with respect to metadata. Now they have to go in with some degree of specificity, rather than just a huge general trawl.

CORIN DANN          So has that influenced your thinking on this?

SIR MICHAEL     I think we need to just work through those issues quite carefully in the New Zealand context, given that much of our information comes from offshore anyway. Our Government Communications Security Bureau is a relatively small organisation, obviously, compared with those of our intelligence partners, and much of the information which is used in New Zealand to inform what governments do and so on actually comes from offshore, particularly through our so-called Five Eyes partners.

CORIN DANN          So where do you come in, as you come into this position in the debate? I mean, we’ve had someone like Edward Snowden who blew the whistle on the whole thing. Can you give New Zealanders a sense of what your view is on him? Because that is important. Did he do a service for the Western world in exposing this, or should he be locked away in a jail?

SIR MICHAEL     I think probably neither of those two things in some ways. I mean, a service in a sense that it opened up the issues for further debate, and I think what that does tell us, and certainly my preliminary view would be, is that there is a need for the agencies to be much more open about what they do. I mean, I’ve seen documents, briefings which it would be hard to justify, in my view, those briefings not being made public. And, indeed, I think the public would get a better idea of the need for the agencies if some of those documents were made public. I think, ironically, the agencies are their own worst enemy by being so secretive about almost everything that they do. Clearly, they can’t identify sources. Clearly, you have to protect those agents who are operating within the field. Clearly, there are sources offshore which demand that their information is protected. But nevertheless there’s a lot of information and briefings that could be made open to the public, even if sometimes in somewhat redacted form to protect essential security issues.

CORIN DANN          But you’re quite clearly of the view, having been in government and been in a position, presumably, of potentially signing warrants…

SIR MICHAEL     Yes.

CORIN DANN          …that there is an absolute need for these agencies to carry out the jobs they do.

SIR MICHAEL     Most important these days is the issue of cybersecurity. Cybersecurity is a major threat in almost any country, both to the infrastructure of the government and to the infrastructure of the private sector.

CORIN DANN          Are you confident that the Government will adopt your recommendations?

SIR MICHAEL     No, it’s certainly not mandatory that they have to, and indeed since the recommendations will largely relate to matters of legislation, of course, even if the Government adopts them, they’ve got to get a majority in Parliament to pass that legislation. So I think it’d be a question of how we put together a balanced package which both ensures the agencies can do what they need to do, don’t do more than they need to do and do what they need to do properly and legally and with appropriate oversight, both by the Inspector General and, of course, by the other oversight agencies. I mean, there are a number of those, including the Intelligence and Security Committee of Parliament.

CORIN DANN          What about information sharing with our Five Eyes partners? Peter Dunne, for one, has raised concerns about the alleged spying on our Pacific neighbours and that information being passed on to the other Five Eyes partners. Will you look into that, whether that is appropriate, legal, whether we should be doing that?

SIR MICHAEL     I’m sure it’s legal. Whether we should be doing it is a matter, I think, for the review to report back on. But inevitably, if we want information from offshore which is important to New Zealand security, which we can’t collect all ourselves – it’s completely beyond our capacity as a country – then we must expect there’s some degree of reciprocity in that case.

CORIN DANN          There’ll be a few people on the left who might have been surprised that you were appointed to this position.

SIR MICHAEL     Yeah. A few people on the left probably are not in the least surprised I might be appointed in this position.

CORIN DANN          But are people on the— It’s some on the left, not all, of course, but some, perhaps, who are too suspicious.

SIR MICHAEL     I think it’s important that people recognise the need. At the same time, I think it’s very important that the public has a degree of suspicion about how powers are exercised, because it is a difficult balance here. By the very nature of things, a lot of what the agencies do is an intrusion, an intrusion on people’s privacy, for example. It’s absolutely appropriate in a democracy that we are suspicious about that. And one of the questions that I think is worth raising is whether we make it clear that what is being protected behind these means is our democratic way of life. That is the purpose, if you like, of the whole exercise.

CORIN DANN          What about private communication? Will you give us a definition on that? Because there are some people worried that effectively people— the GCSB or whoever else can assume that private communication, someone’s email, that the average punter doesn’t actually think that’s private, therefore that they could just access it?

SIR MICHAEL     Well, I can’t give a definition, partly because one of the things we’re specifically tasked with addressing is whether the current definition in the Government Communications Security Bureau legislation is adequate and appropriate. Now, there’s been some quite strong criticism of that from the Law Commission. It is actually an extraordinarily difficult thing to define, both to ensure there’s maximum protection for private communication and yet to enable some accessing of some aspects of that, should that be appropriate in the security context. This I think is one of the most difficult issues within any security and intelligence apparatus and legislation.

CORIN DANN          So you’ll have a look at it, though, and do your best?

SIR MICHAEL     Absolutely. We are required to report on that particular matter to the Government and to the Intelligence and Security Committee of Parliament.

CORIN DANN          But that’s fundamental, isn’t it, because of promises by the Prime Minister about mass surveillance, all these sorts of things. If the GCSB, and I’m not saying they are, but if they were able to access people’s emails because they were deemed not private communication, then that opens them up to whatever they want.

SIR MICHAEL     Yes, and it’s a question of what’s the reasonable expectation of privacy that you or I might have as a reasonable person, and the current definition probably has some degree of difficulty in that two parts of it could seen as potentially contradictory.

CORIN DANN          Because do you think, if you send an email, do you expect that to be private?

SIR MICHAEL     Well, mm, I’m not sure about that. It depends how many people I’ve sent it to and what the context of that may be.

CORIN DANN          But that’s the crux of it, isn’t it?

SIR MICHAEL     But, for example, if I post on Facebook, I’ve got no expectation that that is private, and that’s one of the problems of the modern communications system, because we have communications systems these days where by the very nature people are almost saying, ‘I want this to go as widely as possible,’ for whatever reasons. Other bits of communication, we want that to be just private to just one person or two people or three people. So how do we cast the law in a way which copes with this changing kaleidoscope of privacy, which is indeed what we have in the present age?

CORIN DANN          Are you confident that you can conduct your review in an open way? There have been some who suggested that this won’t be an independent inquiry, that it should go to a select committee. Are you going to do this in a way that will be open and transparent and so you can come up with a strong, robust finding?

SIR MICHAEL     As open and transparent as possible, and we want those submissions. We want the broadest possible view of New Zealanders coming through in that regard. That’s our job, and we’re specifically tasked with trying to engage in that way.

SIMON DALLOW         Returning to Corin's interview with Sir Michael Cullen – earlier this year he gave a speech to the Fabian Society about the need for Labour to reconnect with voters or risk becoming a minor party. Corin asked him what Labour must do.

SIR MICHAEL     The key particularly is making better emotional connections. There’s a heck of a lot of political research which shows that policies in and or themselves don’t swing elections – probably more likely to lose votes by and large with actual policies. But it’s the emotional connection which is important, and I’ve talked in terms of some sort of core concepts where I think we’re rather weaker in the Labour Party in those emotional concepts.

CORIN DANN          National identity was one of those, wasn’t it?

SIR MICHAEL     National identity, I think, in a way, right-wing parties manage to wrap themselves in the flag. Ironically, New Zealand, the Labour Party has historically stood much more clearly for a separate New Zealand national identity than National has.

CORIN DANN          And that’s quite conflicting for left-wing people, though, isn’t it? Because they might be cynical about the flag exercise, yet a lot of them would quite like to see the flag change. I wonder about yourself?

SIR MICHAEL     Well, I certainly would, yes. I mean, I’m British-born New Zealand, and I find it odd we have a flag with my old flag stuck up in the top left-hand corner. I mean, I think we’re a totally independent country.

CORIN DANN          Is that smart politics from National?

SIR MICHAEL     I won’t get into that question. I mean, at the moment, it doesn’t look very likely there’s going to be a referendum vote in favour of changing the flag in New Zealand. It’s probably going about the same way as a republic at the present time.

CORIN DANN          Going back to Labour, how does Labour recapture that national identity concept?

SIR MICHAEL     Well, let’s take an example. The issue of sending troops to Iraq, even a small number of trainers plus support troops. Naturally enough, given there was no UN resolution, et cetera, Labour opposed that. But my view was that rather than the headline being Labour opposing sending troops, and everybody thinks ISIL really is a very horrible bunch of people who hopefully can be got rid of in some time and some form, we should have been emphasising the other things that we could do. The Labour Party said that, but it was not the primary message that I think got across to people. And most people are saying, ‘We should be trying to do something to assist in this regard. What can a Labour party do consistent with these principles, which is not even actually involved—‘ It was not the best thing New Zealand can do, probably. I mean, we’re not exactly the world’s most vital military power at the present time.

CORIN DANN          So you talk about in your speech the issue of intelligence, using intelligence, those sorts of things.

SIR MICHAEL     Certainly, intelligence, I think, is a reasonable thing. Certainly things like aid, humanitarian aid, certainly, I think, taking more refugees.

CORIN DANN          You talked to them about it?

SIR MICHAEL     The speech was to a Labour Party meeting, actually.

CORIN DANN          But I mean the leadership, the hierarchy?

SIR MICHAEL     I talked to them, but people have to make decisions. It’s the way you cast the messages. I mean, Labour people, spokespeople said those things, but it wasn’t the first thing that got heard. The first thing was a criticism of sending troops, rather than saying, ‘We support doing something about this situation. We do not support in the slightest these awful people in ISIL. What is best for New Zealand to do to help?’ And which people would react to it on an emotional level, rather than just a sort of policy wonk level.

CORIN DANN          I wonder then, though, because New Zealanders have certainly reacted on an emotional level on the issue of foreign buyers and Chinese buyers of housing.

SIR MICHAEL     Yes.

CORIN DANN          And I wonder how comfortable you feel with that policy. Is that the right type of connection? I mean, they’ve well and truly connected with this data release…

SIR MICHAEL     Yes, yes.

CORIN DANN          …with Kiwis in Auckland who feel locked out of the housing market.

SIR MICHAEL     I think everybody feels that it’d be useful if we had much better information about who’s buying the houses in Auckland. If there is, as there appears to be, very significant offshore buying into the Auckland market, then that must be a factor in pushing prices up. Now, of course, if we were better able to address the supply issue of more houses, then that wouldn’t be quite so important, but in the current context of constrained supply, then that does become the important issue. So it’s good to see that we’re going to have some better information soon. It’s a pity we haven’t done that, and I accept that probably the last Labour government should have done more in that regard because we had a similar experience in terms of rapid price inflation in Auckland in the mid-2000s.

CORIN DANN          But is that type of emotional connection – I mean, are you comfortable with the way in which that was done? Because some have seen it as targeting Chinese.

SIR MICHAEL     I don’t see this as some kind of xenophobic reaction. If it was, I’d be deeply concerned about that. I do see it as an issue of who is buying these houses, and it does appear from all anecdotal evidence that a great deal of it’s coming from mainland China. And that’s not ethnic. I mean, the fact that China’s inhabited by Chinese happens to be a fact of life. If that’s where the pressure is coming from, I’m afraid one’s talking about that particular group. I’d have exactly the same attitude if there was clear evidence that the main impact on that market was coming from Britain, even though I’m a British New Zealander. I mean, it’s not an ethnic issue. It’s where is the pressure on the market?

CORIN DANN          And it kind of also— Does it also sort of touch on the other aspect you raised in your speech about aspiration and this idea that the Labour Party hasn’t been able to own that concept when it should?

SIR MICHAEL     It should because, I mean, we’re the party that stood for yonks and yonks and yonks for equal opportunity, for promoting opportunity, for doing everything we can to extend opportunity to everybody. What I’m saying is, and I’ve been a bit guilty of this myself in the past, if we believe in opportunity, then we’ve got to be very careful about not making it look as though we condemn people who’ve succeeded in life. I mean, it’s a bit contradictory to say, ‘We want opportunity for everybody to succeed, but if you succeed, we’re going to sort of come dumping down on you for your success. On the other hand, I think those who do succeed, and this comes back to another point I was making, have a responsibility to not pull up the ladder behind them.

CORIN DANN          When you look at the voters Labour is trying attract now, has the typical Labour voter changed? Is it just different now?

SIR MICHAEL     Certainly changed, no doubt about that. It’s a got a huge number of people are now dependent or semi-dependent or independent contractors, essentially sometimes seeing themselves as small-business people, rather than employees, whatever the law may say in that regard. I think Labour does have to work to make connection with those people to say, ‘You still have interest in terms of a fair system of health and education, a fair system in terms of superannuation. You still have an interest in maybe a more active role for government in terms of support for business and promotion of growth within the New Zealand economy.’ All of those are possible points of connection. The danger, I think, that the Labour Party always face, and I’m one of the worst offenders in this regard, is that faced with that, we always tend to reach for a policy, you know, we have, sort of, 10 policies and throw 10 policies out there, rather than working out how we’re going to make that emotional connection with people, and the policies follow on that. The policies implement that emotional connection.

CORIN DANN          That’s putting quite a lot of pressure on Andrew Little and his leadership, though, isn’t it? Because you’re saying they need to make the emotional connection with voters, so that’s putting pressure on him as a leader to really have that charisma, isn’t it?

SIR MICHAEL     No, it’s putting pressure on everybody in the Labour Party to realise the world has changed. I mean, both the Labour and National parties and New Zealand First Party and I suspect some other political parties are nominated by older people in terms of their membership. We probably have, in the Labour Party, more young people than the National Party does, and the Greens probably have the highest proportion of young people. And often I find in discussions within the party, these issues around the changing nature of society haven’t been fully grasped, because when you’re elderly and retired, you can live in the sort of retired cocoon, which doesn’t necessarily connect that well with the way the rest of society’s moving and working and operating.

CORIN DANN          The party arguably rejected a generational change when they had the choice with Grant Robertson and Jacinda Ardern. They were that next generation.

SIR MICHAEL     Oh, I think it’s a bit hard on Andrew to sort of describe him as though he’s my kind of generation in the Labour Party.

CORIN DANN          Well, no, fair enough, but, I mean, there’s no question that Grant and Jacinda – they campaigned on that ticket of a generational change.

SIR MICHAEL     Yes, yes. And when you say the Labour Party rejected it, I mean, it was one vote in caucus that decided the outcome. Let’s be clear about that. We just don’t know which vote it was within the party, so it was a very narrow election between the two. I mean, I’ve been quite open both the last two leadership elections. I supported Grant Robertson. I still believe he’ll be someday a very fine leader. But Andrew clearly is an able, intelligent, responsible, sensible person, and that’s very good, so I’m not going to make any further comment on the matter of leadership.