Telecommunications (Interception Capability) Bill — First Reading 
Telecommunications (Interception Capability) Bill — First Reading 
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Telecommunications (Interception Capability) Bill 
First Reading 
Hon RICK BARKER (Associate Minister of Justice) 
: 
 I move  
That the Telecommunications (Interception Capability) Bill be now read a first time. 
 It is my intention to move that the bill be referred to the Law and Order Committee. This bill is necessary to ensure that law enforcement and national security capability are not seriously eroded by changes in technology. This bill places a legislative obligation on telecommunications network operators to be technically able to intercept telecommunications going over that network when authorised by a warrant or other lawful authority. This bill also creates a legislative “duty to assist” on all telecommunications network operators and service providers. That means they must provide reasonable assistance to the police the Government Communications Security Bureau and the Security Intelligence Service in intercepting telecommunications within their technical capability and on a cost-recovery basis. This bill does not change or extend in any way the existing powers of the police the Government Communications Security Bureau or the Security Intelligence Service to intercept telecommunications. If the relevant agency has lawful authority to intercept a telecommunication technological barriers should not prevent them from doing so.  
This bill is complementary to the Crimes Amendment Bill (No 6) which is currently awaiting its second reading before this House. Currently authority for interception can be obtained only in respect of oral communications. The Crimes Amendment Bill (No 6) extends that authority to cover other forms of communication such as text messages emails and faxes. This bill is complementary as it will require network operators to ensure that their systems are capable of intercepting those forms of telecommunications.  
This legislation is not unique. The United States the Netherlands Germany the United Kingdom and Australia all have comparable legislation. The network operator has interception capability if the agency with lawful authority is able to do the following: identify and intercept telecommunications as authorised obtain relevant information about calls intercept unobtrusively while protecting the privacy of other communications obtain information in a usable format and undertake any of the four activities above in an efficient and effective manner.  
There may be a concern that the privacy of individuals who are not the intended targets of the authorised interception will be breached. To address those concerns a number of privacy protections have been placed in the bill. First any interception will only be able to be made in accordance with a lawful authorisation and with the technical assistance of an authorised individual officer or employee of the company. Second the interception capability requirements specifically refer to privacy. They include the ability to exclude telecommunications not authorised to be intercepted. Third the bill includes an express duty on those carrying out interceptions to minimise the likelihood of intercepting telecommunications that are not authorised to be intercepted. Fourth the network operator will not be required to decrypt any telecommunication encrypted by a customer unless that network operator provided the encryption facility. I can report that extensive work has been undertaken with the Privacy Commissioner in the development of this legislation.  
The Government will pay for the provision of interception capability for existing fixed and mobile voice networks to be implemented within 18 months from the date of the legislation being enacted. Network operators will meet the cost of upgrading their networks to provide for the interception of Internet and email services with a 5-year implementation period from the date the legislation is enacted. New companies and new services introduced by existing companies will need to be interception-capable within 18 months of the legislation passing. This phased implementation process is in order to provide the industry with the opportunity to implement the necessary technical change in a way that is cost-efficient recognising that some equipment will need replacing in that time anyway. It is easier and cheaper to install interception capability at the time of design and implementation of new networks rather than upgrading existing networks.  
Enforcement of this legislation will be done by way of a compliance order from the High Court. A civil enforcement regime will be established by the bill with contravention of the compliance order potentially resulting in a fine of up to $500000 and a daily penalty of $50000.  
One of the stated purposes of the legislation is to ensure that the requirement to provide interception capability does not create barriers for the introduction of new or innovative telecommunications technology. To ensure that the Minister of Communications will be able to grant exemptions from the requirements. Such an exemption may be granted in a special circumstance and will be subject to such conditions as the Minister thinks fit after consultation with other specified Ministers. Such an exemption might be obtained for example to enable industry participants to trial new technology for specified periods. I commend this bill to the House. 
Dr the Hon LOCKWOOD SMITH (NZ National—Rodney) 
: 
 There are times when Ministers come into this House to introduce a bill when I wish they at least sounded like they believed in it. Having listened to the Hon Rick Barker I am not sure whether he even understood what he was reading. It is not his bill but the bill of the Hon Lianne Dalziel so I guess we cannot expect Rick Barker to know much about it. However he should at least pretend that he knows something about it instead of just sounding as bored as he did when he read that introductory speech.  
This is important. I know David Benson-Pope might not think it is important but it is. It is important because in the gathering of intelligence information in this country at present we have some significant loopholes that have to be fixed if we want to have an effective intelligence system. Following 11 September the Bali bombings and the growth of terrorism threats around the world I think most New Zealanders realise that this is an important issue even though Labour’s senior whip David Benson-Pope does not.  
We have a problem in that at present some digital phone and Internet technologies do not permit the monitoring of communications and information where necessary via interception technology. Those are major loopholes. A lot of organisations and people in this country now use digital phones. If there is a serious threat to our security that cannot be monitored this country has a serious problem. If members listened carefully to what Rick Barker was saying they might have discerned from his gabble that what the bill actually does is require telecommunications businesses to be able to intercept communications where authorised by one of New Zealand’s authorised surveillance agencies. Those telecommunications businesses must be able to intercept communications that have been lawfully authorised for interception. That is the fundamental principle of the bill and currently we cannot do that. Of course there is nothing wrong with that—it is a vitally important principle.  
There are two further measures in the bill that I think are also important and which I agree with the Government about. The first is this: where a surveillance agency is obtaining assistance for the interception of telecommunications from a telecommunications provider the surveillance agency must not create barriers to the introduction of new or innovative telecommunications technologies. That is a sensible thing to have in this legislation. 
There is a third element that I also think is sensible—that is where the surveillance agencies require the monitoring of certain telecommunications they cannot spell out to the telecommunications providers the technologies the design features or the specifications they are to use in carrying out that monitoring or surveillance. That is also important. It means that we minimise the risks of these new monitoring provisions from if one likes acting against innovation in communications in this country. This proposed legislation puts a lawful requirement on telecommunication providers to be able to monitor telecommunications when authorised by an appropriate authorisation agency—namely Police the Security Intelligence Service or the Government Communications Security Bureau. The onus then goes on the telecommunications provider to do it in a way that does not in any way hamper innovation in telecommunications. The Government has got the balance of that about right.  
The National Party will support the first reading of this bill. We think it is important legislation. As I said a moment ago most New Zealanders think it is important following the tragedy of 11 September with the World Trade Center and the horrific Bali bombings. We know of course that not all Government members support this legislation. We know that some Cabinet Ministers probably do not support it. 
Darren Hughes 
: Name one! 
Dr the Hon LOCKWOOD SMITH 
: I can name two or three Ministers who do not support this legislation. Jim Anderton is ranked third in this coalition Government. Jim Anderton the third most senior Minister in this Government believes that the Security Intelligence Service “are paranoid spooks hammering down the doors of protesters.” He believes that the Security Intelligence Service is useless. Did Jim Anderton say that way back in the 1960s when he might have been a long-haired protester? No he did not! The third-ranking Cabinet Minister in this Labour-led Government said that in 1998—just over 4 years ago when he was a senior member in the Opposition. He said: “I can’t personally see why we have the Security Intelligence Service at all.”  
We know that not all Ministers in this Government support this legislation. We know all about the Associate Minister for Biosecurity Marian Hobbs’ view of security matters. She was the one who sneaked around the Waihopai base protesting—not way back in the 1960s when she might have been a long-haired protester—but as recently as 1997. She said that spending money on the Waihopai base was a waste of money and that the Government Communications Security Bureau which runs it was unaccountable to Parliament and taxpayers. We have another Government Minister who does not support this legislation. 
Hon Marian Hobbs 
: I do support the legislation. 
Dr the Hon LOCKWOOD SMITH 
: She has changed her mind. We now know that Marian Hobbs has changed her mind from someone who used to protest in 1997 which is not that long ago. Just a bit over 5 years ago she reckoned that the Government Communications Security Bureau was useless. She has changed her mind.  
We know what those who support this Labour-led Government the Greens think of this legislation. Rod Donald believes that the money we spend on that kind of monitoring of intelligence information—$20 million he reckons—should be given to taxi-drivers. That is what he said just a couple of years ago. He reckoned that they would do a better job.  
All I can say is that when it comes to serious legislation that is important for New Zealand’s security it is just as well that we have a responsible Opposition like the National Party that is prepared to support it. Most New Zealanders know that it is important to protect New Zealand’s security interests in a way that does not constrain the freedoms of New Zealanders going about their lawful interests but protects them from the ever-growing threat of terrorism. We know that some members of this Government are not supportive of this important legislation. It is just as well that we have a responsible Opposition to make sure that the Government can pass it. 
Hon PETER DUNNE (Leader—United Future) 
: 
 I want to assure the member who has just resumed his seat that I do not believe that the Security Intelligence Service should be turned into taxi-drivers. I have never been a protester longhaired or otherwise at Waihopai. Although I do confess that in 1977 which is a wee bit outside his time frame to going to a public meeting at the Wellington Town Hall as part of opposition to changes that a then National Government was proposing to the Security Intelligence Service legislation. That may damn what I am about to say but I wanted to put it on record in case scurrilous accusations were made subsequently. I know that it has rocked the House and I apologise for the shock. 
Ian Ewen-Street 
: I went to a peace demonstration. 
Hon PETER DUNNE 
: Mr Ian Ewen-Street has admitted that he went to a peace demonstration—it gets worse! Did I inhale?  
This legislation has two important elements to it and I want to deal with both of them. The first is rightly as both the member who preceded me and the Minister in his introductory speech indicated the need to ensure that our surveillance capabilities are able to keep pace with technological change particularly given international terrorism and the international climate we face at the moment and the certainty that whatever else may happen things will become worse before they get a great deal better.  
There can be no real objection to this legislation on the grounds of its stated intent of ensuring that the interception capability is there regardless of improvements in technology. I do not think that any responsible person can object to that. It is a truism to some extent but it is also an important element of ensuring that our law enforcement agencies our surveillance agencies and others have the capability to actually do the job we require of them.  
But having said that there is an important other side to this legislation and it is the conundrum we face every time we deal with issues that relate to law enforcement and private individual rights. The explanatory note states: “The Bill does not change or extend in any way the existing powers of the New Zealand Police the New Zealand Security Intelligence Service and the Government Communications Security Bureau (the surveillance agencies) to intercept telecommunications.”  
On the face of it that is a very reassuring statement. When the Minister spoke he paid great attention to the fact that there are various protections contained in the bill in clauses 5 6 7 and beyond and particularly in clause 8 in respect of the restrictions that are placed on agencies in terms of the changes that are proposed here and any conflict with individual human rights. On the face of it my colleagues in United Future and I are satisfied that the balance has been struck properly. For that reason we will support the bill going to a select committee. But I want to make the point very clear that our support is conditional at this stage not because we disagree with the fundamental principle that is being sought to be addressed here—I think that is unarguable—but because we want to be absolutely clear that the stated intent of the bill and the explanatory note of not conferring any greater powers on the surveillance agencies than currently exist is in fact carried through into law.  
I am not suggesting any deliberate intent on the part of the drafters of this bill to surreptitiously extend the powers of those agencies but I am conscious that in legislation of this type so often these things happen either by omission or by accident. It is important both in terms of the public interest and also the ultimate integrity of this legislation that those matters be very carefully addressed at the select committee.  
Let me give the House a parallel; it does not relate to security issues but it does relate to the sort of difficulty we can get into when we start to set up complex procedures to regulate a particular provision. Last year this House dealt with legislation regarding the Kyoto Protocol and a whole range of issues about how the Government’s commitments under that Protocol might be enforced. When it came to the select committee we discovered a number of things—even opponents of the bill would have agreed—that went far beyond what the stated intent was. We have given more power to the enforcement agencies established under that legislation than the police have or even the courts in some circumstances. The select committee was able to amend that to say: well that is clearly not what was intended but it is not an acceptable position. It is the sort of parallel we might find here.  
I accept the word of the Minister and the bill that the changes simply bring into line current telecommunications regulatory provisions and technology changes with what our expectations are. It is important that telecommunications providers the Privacy Commission and others with an interest in this area have the opportunity to run the rule over the legislation to make sure firstly that that is actually true and secondly that there are not unintended consequences as a result of the quite clearly specified procedures set out here.  
It is absolutely clear to me that this type of legislation and the companion piece that the Minister referred to in his address—which is still somewhere in the parliamentary process—are critical. We do need to have them. We cannot stay still for ever. But we have also to make sure that as we make those changes they both meet the objectives we set for them and do not compromise however accidentally a whole range of other things at the same time. It is easy in the current environment to say: “Look the risk of Bali or associated activities or threats is such that we cannot afford to be overly protective of individual rights that the greater good outweighs a lot of those concerns.” I do not think that is necessarily so. I have no truck with terrorism. I am as strongly resolved as any member of this House to ensure that terrorism is stamped out and that we do what we can in this country to create an environment that makes that unpalatable unattractive and unable to proceed. But I am also determined that in the process we do not restrict unduly the rights of our citizens to go about their normal lives and normal activities in the way that they might deem appropriate.  
Yes there is a balance to be struck and it is important that we get that right. All I am saying is that when this bill goes to a select committee we need to be able to look at it in such a way that when it comes back to the House we can say this bill has achieved that objective of ensuring that our national security capability is not seriously eroded by changes in technology and that no additional powers have been extended by this legislation beyond those already in place for our surveillance agencies.  
The ultimate test will be this: we live in a time when international pressures and other issues make this sort of thing highly topical but if we were to come into a more benign era we would still want the types of provisions that are contained in this legislation to have integrity and credibility. My point is that they will do so if people feel that their rights are not unduly compromised that our national security capability is not weakened and that we are able to proceed in pace with technological change.  
United Future members give conditional support to the bill we look forward to the select committee examining these questions in careful detail and we hope that the bill that emerges is one that can gain widespread support in the House and can quickly find its way on to the statute book. 
DAIL JONES (NZ First) 
:  
Speaking on behalf of New Zealand First I think the preceding members have covered the situation under this bill extremely well. I take the point raised by the Hon Peter Dunne that New Zealand First is also opposed to the state of terrorism and the dreadful activities that have taken place overseas. We do not want them taking place here.  
I mention in passing as reference to the 1977 legislation when I was a member of the Government in those days we had the situation of Ananda Marga at that time and we had what were perceived to be problems with Dr Sutch and information being passed over to the Soviet Embassy at the time of the cold war. Today’s situation is really much worse than that and it is a real threat. Peter Dunne made the point that we must not effectively throw out the baby with the bath water. No member has as yet touched on clauses 21 to 27.  
In clause 27(4) especially we are changing the onus of proof under which one can act under this legislation. Usually when we are involved in a criminal type of proceeding the onus of proof to establish a prosecution is “beyond reasonable doubt”. We do not have the fairly strict “beyond reasonable doubt” requirement in this legislation we have a loosely worded phrase that some members may not fully understand. Clause 27(4) states: “The standard of proof in any proceedings under this section is the standard of proof that applies in civil proceedings.” That really does not tell us anything because then we have to ask what is the standard of proof in civil proceedings. The bill could have been better drafted and I am disappointed that no Minister of Justice or justice spokesperson from the Government has taken the call in this matter.  
Clearly what that means is that the standard of proof is on the balance of probabilities which is a much lesser test than “beyond reasonable doubt”. Under that much lesser test we can get a pecuniary penalty of $500000 against a person. That is not tough enough insofar as the penalty itself is concerned. Why is there no jail sentence in this legislation? We are looking purely at a company. Surely we should be in a situation in this legislation that we could be a bit tougher and imprison someone who does not comply with this legislation. If we are dealing with a big company it can pay the $500000 out of profits or whatever or borrow the money but nobody goes to jail. Why cannot we be tougher still? I will be interested to see when this bill comes back from the select committee whether the select committee takes up the point that if people commit an offence under this legislation in the sense that if they do not comply with the compliance order the High Court has the option to ascertain who the person or persons were who did not comply with the requirements and send them to jail. At this level up to $500000 is not terribly much for the types of people involved and of course the types of offences involved.  
Hon Dover Samuels 
: After that $500000 a day. 
DAIL JONES 
: Yes and impose a further penalty of $50000 for each day after while the contravention continues. But if we are dealing with people who have billions of dollars a $500000 fine is neither here nor there. Trying to lock them up would be more important.  
I am concerned that this Government has again failed to put up a justice spokesperson the Minister of Justice or the Attorney-General. I believe that this House has been sold short in these justice areas since I have been here. The Labour Government has no concern from the point of view of the protection of the individual insofar as his or her legal rights and suchlike are concerned.  
If the Labour Party had any concern for justice and legal rights the Attorney-General would have stood up in this House and explained the situation. I will be very interested to see the penal provisions in this bill when it comes back from the select committee Those provisions touch on the matter Peter Dunne talked about which is that if we bring in this legislation we are taking away people’s rights and we should have a clearer indication from the Government as to what it is that is being removed from our rights. 
DARREN HUGHES (NZ Labour—Otaki) 
: 
 I am pleased to support the Telecommunications (Interception Capability) Bill whose first reading debate was commenced tonight by the Associate Minister of Justice the Hon Rick Barker. Obviously the bill has a technical capability. It covers areas where there is a duty to assist and I am sure that when it goes to the Law and Order Committee it will be reported back in a way that complements the Crimes Amendment Bill (No 6). 
DEBORAH CODDINGTON (ACT NZ) 
: 
 I rise to represent the ACT party. We support the Telecommunications (Interception Capability) Bill as we would proudly support any legislation to protect national security and uphold and promote law enforcement. That is why we support this bill; and that is contained in the first sentence in the preamble to the bill. But why is this Government so schizophrenic when it comes to the issues of national security and law enforcement? That is what is confusing to me.  
If the Government can introduce a bill like this and if we can talk about protecting national security let us look at the defence of this nation. What is the point of having this legislation which I have already said that ACT supports when thanks to this Government we already have a severely marginalised defence force? For instance as we speak  
Te Kaha  
is sailing off towards a potential war zone with 160 men on board and the equivalent of a popgun up front. If we live in such a benign environment as the Prime Minister asserts why do we need this legislation at all? I am sure that my colleague Keith Locke will point out some inconsistencies there and I will leave him to do that. [ 
Interruption 
]  
Yes I am coming back to the spirit of the bill and the spirit of the bill is as it states ensuring that law enforcement and national security are protected. Let us turn that statement round for a minute. If we need this bill which we do then do we live in a benign environment? Of course we do not live in a benign environment and of course we need this bill. We need to protect national security. We all agree on the need for that. In order to protect our national security we also need to support our allies—the United States Australia and Britain—and their courage in their stand against Saddam Hussein. But instead there is an inconsistency as our Prime Minister has aligned us with Continental Europe.  
As the leader of the ACT party the Hon Richard Prebble said in this House on Tuesday 11 February when has Continental Europe ever given a continental about us? Would Germany come to help us? Just look at the German Foreign Minister. I do not know whether— 
Jill Pettis 
: He’s a lovely man. 
DEBORAH CODDINGTON 
: The member says he is a lovely man. Does the member know who Joschka Fischer is? Joschka Fischer is an anti-Semite who changed his view on abolishing the State of Israel only after Entebbe. Despite the terrorist actions at the Munich Olympics in the 1970s when the Israeli competitors were killed off one by one by Arab terrorists that German Foreign Minister was still on the record as continuing to push for the destruction of the State of Israel. 
Jill Pettis 
: I don’t agree with that. 
DEBORAH CODDINGTON 
: That member does not support that. The member was obviously confused and thought I was talking about somebody else. Joschka Fischer that Foreign Minister of a country that our Prime Minister wishes to align us with was also closely aligned with another terrorist organisation in Germany called the Baader-Meinhof gang. I am sure that that member knows about the Baader-Meinhof gang and what it got up to. As one prominent American commentator asked last week in a column: “Who are you Mr Fischer? What do you support?”. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I ask the member to be seated. I remind honourable colleagues of Speaker’s ruling 51/5(3) which states that: “a running commentary of interjection is out of order;”. As my predecessor always used to say interjections should be rare reasonable and relevant and if at all possible witty. 
DEBORAH CODDINGTON 
: Thank you Mr Assistant Speaker. I come back to what I was talking about: the promotion of law enforcement and national security. As those members might remember I did say at the beginning of my speech that I was supporting this bill on behalf of ACT. I come back to the issue of a benign environment. Do we have one? I do not think so but the Prime Minister guided by focus groups and polling has decided that we will not help the United States.  
Prime Minister Blair might well fall on his stand as was said today but at least he stood up for a principle he believed in. As Condoleeza Rice said people all around have the right to protest. That same luxury is not afforded to the people of Iraq. I believe that if we were really serious about protecting national security we would oppose the Prime Minister’s reinforcement of her resolve not to support the United States which is the world’s only superpower prepared to stand up to rogue States. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The debate is much narrower than the area the member is covering now. I ask the member to come back to the bill. 
DEBORAH CODDINGTON 
: Thank you Mr Assistant Speaker. I will focus then on the Telecommunications (Interception Capability) Bill. I am pleased to see that there are provisions in the bill to curb the rights of the State in terms of authorising who will have the ability to intercept communications. I am also pleased to see from the bill that the Government supports compensation for the loss of property rights in terms of the introduction of it and the process that allows organisations and companies to comply with the bill. I am puzzled—and I presume it will be sorted out at the select committee—as to why there is a differential between the provision of interception capability for existing fixed and mobile voice networks to be implemented and why that is not given to the cost of upgrading networks to provide for the interception of Internet and email services. Perhaps one of the members on that side could take a call and explain that discrepancy and why the taking of property is compensated in one instance but not in another.  
I am also pleased that the Government has seen fit to protect the privacy of people who should not be affected by this bill in terms of introducing measures that do not increase the powers of the police and do not increase the powers of the Security Intelligence Service. As I said if this Government wants to have support from the ACT party more often then all it needs to do is introduce more legislation that upholds law and order promotes zero tolerance for crime and protects national security. 
KEITH LOCKE (Green) 
: 
 The Greens will be opposing this bill. This debate has been interesting and I appreciate the caution of some of the speakers like Peter Dunne about the civil liberties implications of this bill. It is a companion bill to a provision in the Crimes Amendment Bill (No 6) that gives the Security Intelligence Service and the Government Communications Security Bureau the power to intercept emails. This bill implements a provision in the Crimes Amendment Bill (No 6) by requiring telecommunications network operators to have all their systems intercept capable. I was on the Law and Order Committee for the consideration of the Crimes Amendment Bill (No 6) and I say virtually all the submissions were against giving the security agencies these powers. 
The Government at that time and again today has made no case as to why we need to give law enforcement agencies these powers at this time and nor has it said how many extra criminals they may catch through these new powers. It has been obvious to the Greens through this whole debate and the debate on the Crimes Amendment Bill (No 6) that this proposal is not being driven by any objectively based demand argued by any politician by the police or by any intelligence agency representative. What came out I think in Rick Barker’s introduction is that it is being driven by what the agencies in other countries are telling us they are doing and what they would like us to do.  
No one is denying that we may catch a few more criminals through these powers but there is a huge downside for us. That big downside has two aspects. One is in terms of our privacy and the other concerns how these powers could be misused by agencies of the Government. It is particularly dangerous for the intelligence agencies to have these powers because those agencies have so little accountability to the public or to Parliament. One person who submitted to the Law and Order Committee to oppose the granting of these additional powers was anti-free trade activist Aziz Choudry who had to go to court to win a case and get compensation for the Security Intelligence Service having unjustly raided his place.  
What is particularly dangerous about the interception of electronic messages is that it can be done on a vast scale because of the sophistication of computer systems. Telephone intercepts were always constrained by the time and human power required to operate them. Because of the ease of intercepting electronic messages it would be tempting for the intelligence agencies to abuse their powers and to intercept the communications of people like Aziz Choudry—that is political dissenters. Once these interception systems are put in place as this bill provides for they will evolve to become even more draconian. We have seen signs of that in Europe recently. David Blunkett the British Home Secretary wanted Internet service providers to be required to keep subscribers’ email records for long periods so that the law enforcement agencies could check back on whom they had had email correspondence with. Three weeks ago a combination of the British communications industry the official privacy watchdog and members of Parliament defeated David Blunkett on that measure but the idea of keeping people’s back emails is still very much alive on the European continent.  
There are also problems with using email intercepts in evidence in that emails can be much more easily doctored in an untraceable way—and we heard evidence of that at the select committee—certainly when compared with paper documents or voice intercepts. One Internet service provider manager Robert Hunt of Plain Communications told a Christchurch meeting in March 2001 that he was worried that email electronic evidence can be juxtaposed to make a case. He explained: “I have had the experience of having a search warrant served on me to require my company to hand over material that was stored on our mail server namely the residual contents of a user’s mailbox. I then saw that material put forward in a curious array of bits to try and construct a case of guilt against a man the jury later found innocent. It took technical evidence before the court that unsupportable assumptions were being made technically before the jury could presumably see the falsity in the aura of guilt created by placing parts of emails in unfortunate juxtaposition. We worry about the way in which decisions are going to end up being made by security establishments when they pick out suspicious elements in material from the correspondence or the surfing activity of someone deemed to be ‘subversive’.”  
The problem with intelligence agencies is twofold: they have their own agendas and they operate in secret so that we do not always know exactly what their agenda is and how they are twisting evidence from intercepts to make their case. We have seen George Bush’s mates using supposed intercept information to undermine the inspectors in Iraq and to try to establish a link between Saddam Hussein and al-Qaeda. Now we have on our statute book the Terrorism Suppression Act whereby someone can be designated a terrorist on the basis of classified information perhaps from electronic intercepts that that accused person is not allowed to see at any subsequent stage in any court appeals. Even if the classified intercept information was accurate it could be there through no fault of the person concerned. To quote Robert Hunt again: “Today you may easily end up with a virus or Trojan in your mailer or other software that will initiate connections to the Internet email multiple parties or push your browser to a porn site.”  
Even if the information the intelligence services possess about the person they are targeting is correct do we really want a situation where people in general become scared about the websites they are visiting or about whom they email in case the intelligence services are watching? If the police are really worried about someone they already have the power to search that person’s home and to look at his or her computer. Is that not enough? The irony of the whole thing is that any real criminal with half a brain will not be caught by law enforcement interception systems. Such a person can very easily use cyber cafés open proxy servers get free unlimited email accounts like MSN Hotmail and get away scot-free. People like that will never be intercepted by any surveillance system.  
Another likely extension to the electronic surveillance system once it is entrenched through this bill in Internet service providers is to move beyond targeting particular individuals to a keyword trawling system. The Government Communications Security Bureau already uses that system through its Waihopai satellite communications interception station which is part of the Echelon network run by the US National Security Agency. It is also what the FBI in America’s Carnivore email interception system does in that country. Those systems are hugely intrusive into the lives of us all because any of us can accidentally use a keyword or key name that is being trawled for and get caught up in the net without even knowing it. Sometimes we do find out. This is what happened to a Wellington woman who made a submission to the Law and Order Committee. She had emailed a friend in the United States indicating that she could not watch the American presidential elections on television because she was going to a funeral. Because the email had the words “president” “election” and “funeral” in it it was intercepted by the Carnivore system and her friend was visited by the FBI and told about that email.  
We live in a world where there are too many moves—and the American Government is egging us on—to go down the road towards a surveillance society and I say we should not go further down that road without a good reason and without good controls. It is a problem with any bureaucracy—we have found this in the past—that some police have been charged with wrongly using the information that has been obtained and that will happen more if there is email interception. The Security Intelligence Service has been shown to have acted illegitimately on occasion and in this case the Internet service providers will also be in the system too and will perhaps use the information wrongly even though under the bill the information is supposed to be confidential.  
It is good that there is a warrant system in the bill but as we found out in the Law and Order Committee there are problems with the warrant system. There is no proper audit system for the warrants there is no system for telling people subsequently that they have had their emails intercepted and there is no proper system particularly for the Security Intelligence Service to destroy the evidence that has been collected on people when it is no longer required. There should be an amendment to the privacy principle of the Privacy Act so that the Security Intelligence Service is not exempt under that Act and is required to remove information once it is no longer necessary. 
There are a lot of problems in controlling the agencies that undertake electronic interceptions. Why not rely on traditional policing which is the most valid and the least restrictive system in terms of our civil liberties? 
JILL PETTIS (NZ Labour—Whanganui) 
:  
Nobody doubts the good intentions of the member who has just resumed his seat but I just wonder what Mr Locke is really describing. He worries me. My own personal belief—and God willing it will never happen—is that if this nation of ours was under serious threat I would want the most sophisticated form of technology available to protect our own interests. This bill is about maintaining law enforcement and our national security capabilities in an environment of rapid changes in technology. Now I am no techno-whiz but technology changes almost by the hour and our country needs to be as up with technology as possible. We are doing that in a highly targeted way eroding neither privacy nor basic individual rights and it is totally in tune with the Government’s aims for an innovative society. I am pleased to support this bill because it continues to protect people rather than to destroy any rights they might have at present. 
Dr WAYNE MAPP (NZ National—North Shore) 
: 
 As my colleague Dr the Hon Lockwood Smith has said National supports this bill but we want to make it very clear why we are doing so. The reality is we are living in an age of international terrorism. The threat is real is substantial and has affected New Zealanders directly. There are New Zealand families around today who have within the last 12 months lost family members to terrorism. That is the real issue that we are debating. When one hears the member for the Green Party one realises he dresses the issue up out of some kind of naivety and the Government gives a certain level of credit to that. But that is not true. Fundamentally Mr Locke does not accept that we have to struggle against the real threat of international terrorism and that the enemies of democracy and freedom out there would challenge our nation’s cherished freedoms. We are right in this House—and I believe the vast majority of the House recognises this—to provide the appropriate powers to protect our society.  
I want to go briefly through some of those powers but interestingly the previous Government speaker really identified the core of them. They are about keeping up with modern technology. The very core of this bill provides additional powers to network operators. Let us be clear that we are talking about TelstraClear and Telecom the sorts of companies that operate network systems. This bill gives the powers to require that there are interception capabilities in those network systems. No longer can one just put a wiretap on a person’s phone or computer. Technology simply does not work in that way. It may have in the past—and it did—but it does not now. A network is centrally driven so in order to have an interception capability particularly in terms of computer communications and emails that has to be provided for at the network level. That is what this bill does. It recognises the basic changes that have occurred in technology and gives those powers.  
I want to refer to a point that was raised by the leader of the United Future party and indeed others. A number of people have said today in this Parliament and I think they were quite well intentioned that they support the bill because it does not extend the powers of the Security Intelligence Service the police or the Government Communications Security Bureau. On the face of it that seems a reasonable proposition. But that is partly because it is not well understood that across a range of legislation—and Parliament has had to deal with quite a lot over the last 24 months—there are significant huge gaps. The ACT party also does not recognise that. The reality is that terrorist activity could occur in our country yet our authorities would not have the interception capability to deal with it. I am not talking about this bill; this bill does not fix that problem. I am talking about a situation whereby a New Zealand citizen or resident communicates with a foreign terrorist entity an embassy or something of that nature in a way that would be harmful to New Zealand’s interests. Our law does not allow for the interception of those kinds of communications. I regard that as quite a serious deficiency. The law allows interceptions between a terrorist entity in New Zealand and a terrorist entity overseas or a foreign intelligence service or between the operators and overseas entities or between two foreigners operating in New Zealand.  
That is not the only risk we face. We need only to look at what happened in the United States to see that a whole lot of foreign nationals—some of them actually had United States residency—operated surreptitiously and secretly using telephones faxes and emails and hatched a diabolical plan to crash two aircraft into the World Trade Center. The United States has the powers to make the appropriate interceptions but in New Zealand we do not. If we look at the Order Paper we see an interrupted debate on the second reading of the Government Communications Security Bureau Bill is item No. 21. One of the things we need to do is to see whether amendments are required to that bill. We are not drawing together the range of legislation in this area consolidating it and sending it to one select committee that could do something of an overview and ensure that our law does not have gaps. This is surely a time when that kind of overview is essential. I know that the Government has been working on producing a series of Acts but I do not believe it has connected the various parts of that legislation in order to provide the range of protections and security that is necessary to protect our essential freedoms. That is a particular gap that I have identified.  
My colleague raised a question about the views and attitudes of various members of the Government. Marian Hobbs might have found it amusing to reject that issue on the basis that she has changed her point of view. But as Dr the Hon Lockwood Smith pointed out it is not as though we are talking about the 1970s. We are talking about a senior Government Minister who while an Opposition member in 1997 participated in a protest against Waihopai simply disbelieving that the Government Communications Security Bureau had any role. What has changed her view? One would like to give her credit and say that maybe the responsibilities of Government have brought her to adopt a common-sense approach. Maybe the Government whip has said to Marian Hobbs that while she is in Government she must obey the Cabinet line. But this House deserves to have any Minister who has held such views in the past state directly to this Parliament why he or she has changed his or her views. Those members should take a call. That Minister was here and was able to take a call to say clearly and specifically to the New Zealand public why she has changed her view and what has brought about that conversion. She owes that to us. As I say it is one thing to talk about the views that one held one or two decades ago but it is quite another thing when people have held those views as members of Parliament. I think it is important that we receive a full explanation from those Ministers.  
I conclude on this point: right at this moment the world is on the cusp of dealing with international terrorism. There is a great challenge out there and it is Iraq. Iraq does have weapons of mass destruction and in particular biological weapons. It is specially prohibited from having such weapons. Biological weapons can only be used in terrorism. We have only to look at the use of anthrax in the United States to see the enormous scale of threat that is imposed by them. That is why we the Opposition members have been asking the Government day after day why it will not support a second resolution in the United Nations declaring Iraq to be in material breach and giving it one final chance to comply—not grudgingly but in a full and complete sense to disarm—or else it must face serious consequences.  
This type of legislation which is part of the struggle against international terrorism and threats to peace brings those questions to the fore. So far we in the Opposition are not satisfied that the Government appreciates the grave seriousness that the biological terrorism of Iraq poses to free people throughout the globe. The Government is charged to answer those questions. 
Hon Rick Barker 
: Oh this bill isn’t about Iraq. 
Dr WAYNE MAPP 
: Interjections from the junior Minister on that issue are simply not constructive. These are serious matters and the Government is required to answer to them. 
LINDSAY TISCH (NZ National—Piako) 
: 
 I want to look very closely at what the bill is about. I have always tempered the view that the primary role of a Government is the protection of its citizens whether it be at home on the street or at work where we rely on the police or whether it be on the national scene where we rely on our defence forces. This bill is about giving an extra tool to our national security to allow us to intercept messages and communications between countries between individuals and between an individual and a country. It is like an insurance policy. 
Clause 7 in my view is the main part of the bill; it is what the bill is about. It identifies that network operators must ensure that public telecommunications networks and telecommunications services have interception capability. That is in essence what the bill is about. The Government is bringing forward legislation that requires that telecommunication operators companies like Telecom Clear Communications and Telstra have interception capability. Clause 7(1) goes on to state: “ … every public telecommunications network that the operator owns controls or operates and every telecommunications service that the operator provides in New Zealand has an interception capability.” That is fine. We support that. 
However there is a provision that does concern me—and we are supporting this bill going to the Law and Order Committee. The explanatory note states: “ … the interception capability requirements specifically refer to privacy—they include the ability to exclude telecommunications that are not authorised to be intercepted.” This will be a very grey area. What is paramount? Is it security? What is the price of security? What is the price if there are interceptions that were not authorised? I guess that is covered in clause 8 “When duty to have interception capability is complied with” or further on in clause 11 “Minister may grant exemptions”. The questions I ask are why we would want to have exemptions and what the price of our national security is. When the bill goes to the select committee those will be the questions we put forward because we want to know exactly what is required there—what actually is that provision. 
We also note that in clause 15 in Part 3 there is a lead-in time. Because of changes to technology there is provision to have a quite substantial lead-in time. Clause 15(1)(a) states: “in the case of a public switched telephone network or a telecommunications service on 1 October 2004;”. Clause 15(1)(b) states: “in the case of a public data network on 1 April 2008.” So there is a huge lead-in time for this. We know that technology changes and that companies will have to spend a lot of money to be able to adapt to the requirements of this bill. We support that. 
We need to be vigilant we need to be ready and we need to play our part in the world security scene. This bill provides for that. That is the reason we will be supporting it going to the select committee. Although we may be geographically isolated we are not immune to what is happening. We saw that with the terrorism in Bali. We need to be prepared. This bill is a step along that way. It is a tool a provision that we can support and we look forward to further debate at the select committee. 
GEORGINA BEYER (NZ Labour—Wairarapa) 
: 
 It is a pleasure to speak on the Telecommunications (Interception Capability) Bill. It is worth reiterating some of the key objectives of this bill. We have to maintain law enforcement and national security capabilities in an environment of rapid changes in technology. Thus we need to require telecommunications companies to provide interception capability for e-communications. We are doing this in a highly targeted way eroding neither privacy nor basic individual rights and in a way that is in tune with the Government’s aim of an innovative society. I commend this bill going through to the select committee. 
Bill read a first time and referred to the Law and Order Committee. referred to the Law and Order Committee