Ardern Jacinda: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13959. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I appreciate the opportunity to take a short call. My colleagues will be pleased to know that; I know they are all eager to speak on the Telecommunications (Interception Capability and Security) Bill.I was interested in talking about some of the definition issues that have not been touched on yet. I think it is fair to say that this does deserve rigorous debate because although there was an enormous amount of attention on the Government Communications Security Bureau (GCSB) bill this is in fact the bill that then facilitates what was broadly set out in the GCSB bill which did of course cause great upset amongst the wider New Zealand public over whether or not it had got the right balance between privacy and security. We would contend that certainly this bill in this form has still not struck that balance.I want first of all to come to the definition around “law enforcement agency”. That is set out in clause 3 of Part 1. This is obviously something that the Law and Order Committee took an interest in. As I understand it the clause originally had a definition that specifically set out that “law enforcement agency” meant “(a) the New Zealand Police; or (b) any government department declared by the Governor-General by Order in Council to be a law enforcement agency for the purposes of this Act”. So the bill basically said that everything that applied here would be handed over to the Minister to decide what the law enforcement agencies would be.That was then changed. We now have a clause that states “a specified law enforcement agency within the meaning of section 50 of the Search and SurveillanceAct 2012 that is approved by an Order in Council under that section to use interception devices”. I do accept that that therefore adds extra criteria. So instead of just saying that the Governor-General through an Order in Council sets up what a law enforcement agency is it says we will use the provisions of the Search and Surveillance Act to determine the criteria for what will be deemed a law enforcement agency.I want to look just for a moment if I may at what is set out in section 50 of the Search and Surveillance Act 2012. It basically says: “Look other than the police when we are applying trespass surveillance and the use of interception devices how are we determining what that is going to be?”. It essentially says that the Minister of Justice may recommend the making of an Order in Council. So just to clarify I am assuming that—was that changing which Minister would therefore be making that recommendation from the Minister in the chair to the Minister of Justice? That is just a point of clarification. Excuse me; I was not a member of the select committee and that may be something that the committee debated. But the Minister of Justice would therefore be making the recommendation of an Order in Council “following consultation with the Minister of Police if he or she is satisfied that it is appropriate for the agency to use interception devices and that the agency has—(a) the technical capability to intercept private communications in a manner that ensures the reliability of any information obtained through the use of an interception device;”. So basically can the agency do the job and can we be assured that when it gets that information that is going to be credible?The Act then says: “(b) policies and procedures in place to ensure that the integrity of any information obtained through the use of an interception device is preserved;”. So write up some policies and make sure you have got some good kit—that is basically what that bit says. The Act then says: “and (c) the expertise—(i) to extract evidential material from information obtained through the use of an interception device in a form that can be used in a criminal proceeding; and (ii) to ensure that any evidential material obtained through the use of an interception device is presented to the court in an appropriate manner”.So basically that is about setting the bar for the quality of the way that the material is gathered and the way it is therefore presented and about making sure you have got policies and procedures around that. Granted that is criteria that in and of itself did not necessarily exist in the first definition of “law enforcement agency” that might be recommended via Order in Council. The question is whether that is a hard test. Basically if you have got the kit if you write some policy around it and if you make sure that you use the kit credibly then you are passing the threshold and as long as the Minister of Justice and the Minister of Police have a chat together and decide that they think that it is kosher then we have potentially got a new law enforcement agency on the books.You might question who would be interested in using these powers as a law enforcement agency. An interesting and very important discussion was had in fact at the Justice and Electoral Committee—I was on the select committee for the Search and Surveillance Bill a very technical bill. There were essentially two sets of agencies there that could exercise powers.