Swain Paul: Unsolicited Electronic Messages Bill — Second Reading 
Swain Paul: Unsolicited Electronic Messages Bill — Second Reading 
[Volume:636;Page:6853] 
Hon PAUL SWAIN (Labour—Rimutaka) 
: 
 The problem with trying to follow that speech by Chris Auchinvole is that by the time we get to some of the brilliant contributions from the Government side of the House virtually everybody is turned off. That is a shame because we wanted to introduce some new material into the debate—not the material that was dredged up from the research unit—and we noted on a couple of occasions that the pages appeared to have been read at least twice and that did not help the nature of the argument. 
Chris Auchinvole 
: Sometimes we have to emphasise the points for you guys. You wouldn’t get it the first time. 
Hon PAUL SWAIN 
: No we got it the first time. The member did not need to repeat it over and over again. 
However what members have rightly said is that the Unsolicited Electronic Messages Bill is part of the Government’s strategy to try to curb unsolicited emails—spam in its more colloquial sense. Everybody hates spam. Everybody hates those unsolicited emails. We are told by the Minister that 80 percent of email traffic now is spam. Everybody hates it. It is like somebody blowing cigar smoke in someone else’s face. It is exactly like that. Everybody hates having cigar smoke blown in his or her face and everybody hates receiving unsolicited mail. There are now rules around second-hand smoke as there should be. We have introduced tough measures on for example smoking inside and all those kinds of things because we know that second-hand smoke causes damage from lung issues right through to concussion and possible sore noses. 
The important thing about this legislation is that just as we have rules about second-hand smoke so we should also have rules against spam email. As has already been described the legislation prevents New Zealand from becoming a haven for spammers promotes good e-marketing practices and provides a basis for international cooperation on combating spam. 
One of the issues that we need to look at is whether spam email is commercial or promotional. Someone is obviously going to have to make that judgment. For example one could receive an email in one’s in-box stating: “To assist in the process we represent a group of Christian businessmen concerned as to the course and direction of the current Government. Accordingly we have put together an election programme with a budget of $1.2 million”— 
Darren Hughes 
: How much? 
Hon PAUL SWAIN 
: —it was $1.2 million—“with the goal of getting party votes for National as this is the only way that change will come about.” That was the kind of email from the Exclusive Brethren that went into the in-box of David Henry from the Chief Electoral Office. Would that email be a commercial spam or a promotional spam? Is it promoting the Exclusive Brethren or is it a commercial arrangement between the Exclusive Brethren— 
Darren Hughes 
: Sounds like a purchase bid to me. 
Hon PAUL SWAIN 
: Possibly it was a purchase bid; possibly it was almost a tender bid. Yes it was almost a tender from the Exclusive Brethren to the Chief Electoral Office. If it had been a commercial spam email Mr Henry would have had the opportunity of opting in which means that he probably would not have received it unless he clicked on “Yes I want to receive this.” If the spam was promoting the Exclusive Brethren there would have to be an unsubscribe facility which means someone could open it but could send a message asking not to be sent any more of that garbage—that junk mail. The Exclusive Brethren were donkey deep in this kind of thing and if this legislation had come in a bit sooner then possibly National might not be in the position it is in today. 
Darren Hughes 
: Don Brash could still be leader! 
Hon PAUL SWAIN 
: Don Brash could still be the leader. 
The ASSISTANT SPEAKER (Ann Hartley) 
: This is hardly— 
Hon PAUL SWAIN 
: No no Madam Assistant Speaker this is absolutely on email spam which is a subject introduced by the previous speaker. 
The kinds of emails that people get in their in-boxes every time they open them the sorts of things that annoy people the sorts of things that the previous National speaker raised are emails such as this from people who state that they believe “… time is of the essence. Our campaign … is direct and simple—It creates and demonstrates MISTRUST in the current Government. It builds TRUST in a DON BRASH led Government.” An email such as that has gone into an in-box for Don Brash and has also been copied to John Key. When someone received that piece of electronic information would it have been a commercial electronic email or a promotional electronic email? 
These are the things that the select committee had to decide on. In the end it decided—I think absolutely quite rightly—to distinguish between the two of them. I think in this case it could well be argued that this was a commercial email and therefore there would be an opt-in provision. If the Exclusive Brethren had sent the email under this legislation and either did not have an opt-in part of the email or did not have an unsubscribe facility it would be in breach of this particular legislation and it would be up for a fine of potentially around $50000 in the case of promotional activity and— 
Darren Hughes 
: Plus GST! 
Hon PAUL SWAIN 
: Yes there would be then a question of whether it was inclusive or exclusive of GST. That is something the National Party would take a long long time to determine but whatever it was there would be some considerable fine. 
The email was sent to Don Brash and John Key. John Key then said he did not believe he ever received that email. 
Simon Power 
: I raise a point of order Madam Speaker. Whilst we know the member is heading for retirement and has taken the opportunity to give a semi-valedictory speech the fact remains that the bill relates to quite a technical issue relating to spam and its invasion of the computer systems and Internet arrangements in this country. The member should be drawn back to the provisions of this bill. 
Hon PAUL SWAIN 
: Speaking to the point of order Madam Speaker I have had a lot to do with this bill. I have studied it. I was one of the Ministers who promoted it. The issues of what went into people’s in-boxes and what did not and what was the appropriate action to be taken by someone receiving such email whether it is a commercial or a promotional email is absolutely in line with this bill. Using examples as a way of trying to elucidate what we are talking about here for the people at home is a perfectly legitimate way of debating this. 
The ASSISTANT SPEAKER (Ann Hartley) 
: The member is addressing the issues within the bill. Please continue. 
Hon PAUL SWAIN 
: What we then get is an email that has been sent to Don Brash. We have already tried to work out whether it would be classed as a promotional or a commercial email. John Key then said he did not believe he received the email and has no record of receiving it. He said: “In my opinion that may indicate it was sent to the wrong address.” I think what we need to do of course under the current legislation and without this piece of legislation in place is to decide whether that is believable. That is probably something that people— 
Chris Auchinvole 
: Talk about believable! 
Hon PAUL SWAIN 
: Well people will need to consider it and think about it. In relation to an important email like that—“Did I not get it; did I get it?”—it was the old “Well I can’t quite recall.” I think that was the way it was described. 
Darren Hughes 
: “I remember not opening it.” 
Hon PAUL SWAIN 
: Yes—“I do remember not opening that email.” That is a very good line and it is kind of “Brashy” in its logic. 
But then of course there are other kinds of emails and I think that these would fall probably within the ambit of what is called a promotional email. Here is a promotional email that went for example— 
Darren Hughes 
: To whom? 
Hon PAUL SWAIN 
: —from Bill English to Don Brash. This is a promotional email that under this legislation would have to have a little “unsubscribe” box in it. So when the email is opened a message box comes up labelled “unsubscribe” which if clicked means there would be no more messages. That is the message box’s objective and quite rightly it is different possibly from the other. The promotional email from Bill English that I am quoting from states: “There are a few lessons here”. It states that Brash’s strategy team had been “pushing Judith [Collins] as a star” but she was a second-year MP “pushed beyond her capacity” into a hard portfolio and “with an unfortunately high estimation of her own competence”. It said that Collins “with apparent backing from the top” had “spent too much time cultivating the media herself and believing the resulting publicity.”—a very dangerous thing to do in this job—“She will find it hard to recover her credibility in caucus where she has been a tough critic of her colleagues behind the scenes and they know it.” 
What did Bill English in another email say to his leader? He said that he believed John Carter had been “promoted beyond his capacity”. 
Darren Hughes 
: Is he still here? 
Hon PAUL SWAIN 
: I think he is still here; he is over there somewhere. And what do members think about this email about Murray McCully? “Unfortunately the middle of the road caucus people are coming to the conclusion their fate is largely in the hands of McCully who is happy to burn off anybody who gets in the way Long who just pushes stars and Brownlee who looks after his own interests not theirs. You cannot afford to be seen to allow these guys to burn off the talent we have and reward self promoters who turn out to be incompetent.” 
This is the new united National Party and I am saying that if the National Party had actually assisted in helping promote this legislation a bit sooner then it might not be in the position it is in today. It might have its old leader—I think the fourth or fifth leader since our Prime Minister has been facing that party—and as a result it might not be in this position today. The important thing about this legislation I tell members is that first of all they must be very careful about who sends them what in their emails and they should not encourage people who are promoting themselves. Worse they should not promote people or open emails from people who are trying to do a deal with them behind the scenes sneakily—notwithstanding the fact they are supposed to be a Christian organisation—and trying to get away with it. 
This is important legislation and I support it.