Curran Clare: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 17 October 2013. Volume:694;Page:14031. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): It will be interesting to see whether the Minister in the chair the Minister of Defence is able to answer the specific questions that are put to him during this part of the Telecommunications (Interception Capability and Security) Bill. This is Part 4 of a badly drafted bill that sits alongside the Government Communications Security Bureau Amendment Act to create a surveillance State in New Zealand that ignores and disregards the rights of New Zealanders and that includes unprecedented powers for the Government Communications Security Bureau (GCSB) and for Ministers to interfere in the activities of our digital businesses and our telecommunications networks with no checks or balances. Part 4 of this bill is where the rubber hits the road because this is the part where the expanded regime is set out for the registration of network operators and for the security clearance process of nominated employees within networks. It sets out how they will interact with these GCSB operatives that will work within the networks inside New Zealand how the compliance and penalty regimes for networks will operate and how those compliance networks will operate for those who do not comply.I want to focus on clauses 96 to 98 in Part 4 of this bill for my contribution in this particular speech because this is the part that talks about protecting classified information. It certainly did impact on a number of submitters who put in some verystrong pleas about how this part of the bill was exercised. They did not say that there could not be and should not be a mechanism for the hearing of secret evidence to be presented in court in the absence of a defendant and their lawyer. Where there is a dispute or where there is a problem and if it actually gets to court this is the part where the secret powers can be most concerning if they do not have adequate checks and balances.Tech Liberty NZ which is a significant civil society organisation in our country and has presented on a number of bills before this House in the last almost 5 years around the rights of citizens and the privacy of citizens submitted quite strongly with regard to clauses 96 to 98 which provide for secret evidence to be presented in court in the absence of the defendant and their lawyer: “As a matter of civil liberties and the right to due process enshrined in the Bill of Rights Act we reject the ability of the government to use secret evidence. Secret evidence that cannot be challenged or responded to is a grossoffense to the idea of a fair trial. These provisions should be removed from the bill.” but “If this is to be retained we would expect that the appointment of a special advocate as mentioned in 97(3)(c) would be the barest minimum required to provide any semblance of fairness. This appointment should be mandatory and not at the discretion of the court.”Well I will tell you what the response was to that suggestion. We on this side of the Chamber would probably not take as strong a view as Tech Liberty NZ did on this in the sense that there may be times when there could be secret evidence provided in court but we think that the provision of a check and balance through having a special advocate is an integral part of a system that holds up the highest standards of democracy before this country. Unfortunately this Government as we have heard in the previous debate certainly does not do that. So what was said back was that the officials gave us the advice that those clauses should not be removed and that the New Zealand Bill of Rights Act advice prepared by the Ministry of Justice and by the Attorney-General acknowledged that withholding classified security information during a court proceeding was a limitation on the right to natural justice but given the safeguards put in place such as having a special advocate and the need to keep classified security information confidential it was considered justifiable. Well we will be saying more about the cursory vetting of this bill in the New Zealand Bill of Rights Act vetting process by the Attorney-General later on in the debate on this because we considered that it was just a cursory vetting—a once-over-lightly a rubber-stamping process—and we also contend that the amended bill should have gone back to the Law and Order Committee for another vetting against the New Zealand Bill of Rights Act because of the extensive changes that were made.We were given the advice that the appointment of a special advocate should not be mandatory. If that does not say that there is no serious check and balance being provided in this legislation I do not know what is. On the one hand you have the New Zealand Bill of Rights Act vetting saying that there is a check and balance and therefore it is OK. But on the other hand that check and balance is at the discretion of another process. So it is not there as a right. It is not there as a right for citizens and we contend that this is a serious issue in this bill.We need to talk about costs and the impact of the costs of this bill on companies because when it comes to the compliance regime in Part 4 of this bill this is where significant costs can be realised and may be realised particularly to the smaller companies that we have been warned about through the passage of this bill because of the broad definitions of “network operator” and “service provider” in this bill particularly around what constitutes a network operator. I just want to go back to the letter that we all as members of Parliament received fromNZRise which is a body thatrepresents the New Zealand - owned digital technology sector. This is a group of reputable companies that are trying to be the innovators in our country and we should be listening to them. They say that in practice a small number of businesses—these are the bigger networks the telecommunications companies—will self-identify as network operators and those businesses will notify only a small subset of the decisions covered by the bill. The rest will be in possible non-compliance and as a result can be easily pressured by security agencies. They are warning us that this broad definition of “network operator” could encompass an enormous number of smaller companies that may find themselves in non-compliance and may end up liable under the compliance section of this bill which is overly onerous secretive without checks and balances and could have a huge detrimental effect on our technology sector.They invite us to consider the practical realities of this—that small New Zealand businesses may be likely to be intimidated that the broad powers and expansive wording of the bill could completely undercut New Zealanders’ rights to privacy and protection against unreasonable and disproportionate search. These are obligations that we have contended are onerous. There are not enough checks and balances and the definitions are far too broad in terms of whom they encompass. That is why we have used the phrase “chilling effect” on a number of occasions. We think our technology sector should be driving economic development in this country and we should be giving signals that we want it to drive economic development in this country. What we are doing with this bill is giving it another set of signals that they had better watch out because Big Brother is watching.