Robertson Grant: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is subject to correctionRobertson Grant: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 22 October 2013. Volume:694;Page:14063. Text is subject to correction.]GRANT ROBERTSON (Labour—Wellington Central): As you indicated yourself in your ruling earlier on Mr Chair this title and commencement debate is an opportunity for members of the Committee to bring together some of the threads of the discussion. I am deeply disappointed that Mr McKelvie—who had made a great start the other evening when we were debating this bill the Telecommunications (Interception Capability and Security) Bill—did not share his wisdom with us any further on the question of why he supports—Ian McKelvie: The speeches are the ones that are not given Grant.GRANT ROBERTSON: In this case of Mr McKelvie that is definitely true because they often are not given but he did not share with us why he actually does support this legislation. We have not really heard anything about that from the Government members about why they actually support this legislation. They have not answered the questions that have been raised on this side of the Chamber—legitimate questions around the extent of the powers granted under this bill around the additional costs that are being placed on business and around the potential stifling of innovation that will be caused by this legislation. None of that has merited a response from the National Party’s side of the Chamber.To entertain Mr Finlayson I will speak on both the title and the commencement clauses of the bill and it is interesting—Hon Christopher Finlayson: Entertain away.GRANT ROBERTSON: I am here for your benefit Mr Finlayson. It is interesting when we do look at the title of the bill the Telecommunications (Interception Capability and Security) Bill that the addition in terms of the legislation that is repealed by this bill is the addition of the word “security”. So we have had legislation called the Telecommunications (Interception Capability) Act before.What the Government is doing here is introducing the notion of security. As has been stated several times during this debate there is a balance to be had between the rights and freedoms of New Zealanders—in this case to communicate with one another via a variety of technologies—and the security of New Zealand.Nobody on this side of the Chamber is denying the fact that we need legislation that upholds that balance but the problem we have is that this bill alongside the other piece of security legislation that goes with it the Government Communications Security Bureau Amendment Act unbalances that equation. The fact is that the fundamental rights and freedoms that New Zealanders expect to havehave been undermined and the introduction here—and the word “security” is there in the title—is designed to make New Zealanders feel that the Government has brought forward legislation that will enhance their lives and it will ensure that they will be safer. But in reality that is not what this legislation will do or certainly the case for that has not been made out.That is what then leads me to the amendment to clause 2 proposed by Clare Curran on Supplementary Order Paper 370. The first subclause of that amendment relates directly to the fact that this is now not only about the ability to intercept communications and why that might be required but that it is now fundamentally part of New Zealand’s security framework—a security framework that is governed and controlled in New Zealand by legislation that we on this side of the Chamber believe to be wrong—and also by agencies that are in turmoil. That is the effect of the amendment to clause 2 that Clare Curran is proposing. The effect is that this bill comes into force only once there has been an independent review of New Zealand’s security agencies and the recommendations from that review have been incorporated into any bill that is put forward for a third reading in this House.This needs to happen because the Government Communications Security Bureau (GCSB) which plays a critical role in this legislation is the agency that is responsiblefor large tracts of the implementation of this legislation. It is an agency whose name has been muddied over the last couple of years and in which New Zealanders have quite simply lost confidence. The independent review that is being called for here will enable New Zealanders to understand the role the GCSB can play in a changing world and there is no doubt that in a changing world cyber-security is important. So it is not a denial that that is a role that the GCSB should have but given the state of play with the GCSB—the fact that it has been discredited and the fact that there has been so much of a lack of clarity around the law that governs its work—this amendment from Clare Curran is undoubtedly justified because unless we can rebuild New Zealanders’ confidence in the GCSB its role in implementing this legislation I believe cannot be upheld.Dr David Clark: Who’s the Minister?GRANT ROBERTSON: The Minister responsible for the GCSB? Yes well that would be the Prime Minister John Key. When he stood in this House during the debate on the GCSB bill and told New Zealanders that we just had to trust him on how aspects of the bill would be implemented—Dr David Clark: 26 percent do.GRANT ROBERTSON: —that is right and 26 percent of New Zealanders somehow or other still trust him—and we just had to trust him on the way in which he would issue warrants that was the moment when New Zealanders must have known that the role the GCSB plays had to be reviewed. It has to be reviewed alongside all other security agencies and it has to be reviewed in light of the wider responsibilities that they are being asked to undertake under this piece of legislation and that is why Clare Curran has proposed the amendment on Supplementary Order Paper 370.The other amendment to clause 2 that Clare Curran has proposed is the question around whether or not this bill should be reconsidered under the New Zealand Bill of Rights Act. It would be useful if the Attorney-General might choose to take a call and justify to this Committee whether he believes that the vetting of this bill in terms of our New Zealand Bill of Rights Act has been sufficient because many other people do not believe that.Hon Christopher Finlayson: Very well done.GRANT ROBERTSON: The Attorney-General who is very reluctant to praise himself says that this was very well done. Well the reality is that many other agencies do not believe that and secondly a lot has happened to this legislation as it has progressed through the select committee. A substantive but not particularly relevant Supplementary Order Paper has come forward from the Government. That has not been tested under the New Zealand Bill of Rights Act. And it is worthy of note that the Human Rights Commission exercised its statutory power to directly report to the Prime Minister on this piece of legislation and its companion legislation the Government Communications Security Bureau Amendment Bill. That is a power it has rarely exercised in its existence—less than half a dozen times I think—so that indicates the level of importance the Human Rights Commission puts on the Telecommunications (Interception Capability and Security) Bill. The commission noted in its submission on the bill that it is particularly concerned about the ability—and we discussed this in one of the earlier parts—of those who end up being caught up in the Act to be able to be in court when matters involving them are heard or at least to be represented in court. The commission is concerned that this breaches the right to natural justice in section 27(1) of the New Zealand Bill of Rights Act.There is a specific concern for the Attorney-General to respond to as to whether or not this bill has had adequate vetting. The Human Rights Commission believes that the right to natural justice is compromised by the clauses in this bill that do notautomatically allow defendants to be present when matters pertaining to them are in front of the court. I am not a lawyer—Mr Finlayson will be glad to hear that I am sure—but what I know about the law is that you have a right to be present when matters pertaining to you are heard before a court and you have a right to be represented. That—Hon Christopher Finlayson: Don’t say “you”.GRANT ROBERTSON: One has a right to be present when matters pertaining to that person are heard before the court and that is a right to natural justice. That has not been upheld. That means that Supplementary Order Paper 370 in the name of Clare Curran which says that this bill can be submitted for Royal assent only if it has been reconsidered under the New Zealand Bill of Rights Act is totally justified in my view because the overall question around surveillance and human rights is one that is very much in the minds of New Zealanders and people around the world.Just today in France the French Government is calling in United States officials to ask them what has been going on in terms of mass surveillance. The question of surveillance and human rights is one of the most current questions of our time and on this side of the Chamber we do not say that because we do not believe that the State has the right to undertake these kinds of operations; it is actually because we want to protect the fact that the State may need to do that from time to time and to balance that with the rights of New Zealanders to go about their business.Under this Government that balance has been lost. Trust in the agencies that undertake that work has been lost. That lies directly at the feet of the Prime Minister who has evaded answering questions—direct questions—about the role of the GCSB under his watch. The GCSB gets extended powers under this bill and New Zealanders have a right to know that that has been thoroughly checked against the New Zealand Bill of Rights Act and that their basic rights and freedoms are being protected. Not once in this debate have members of the Government got on their feet and said to this House: “We believe the balance is right.” because it is not.