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: 17 October 2013. Volume:694;Page:14033. Text is subject to correction.]GRANT ROBERTSON (Labour—Wellington Central):Thank you very much Mr Chairperson for the call.Peseta Sam Lotu-Iiga: Big brother just stood up.GRANT ROBERTSON: Sorry what was that?Peseta Sam Lotu-Iiga: I’m talking to Clare.GRANT ROBERTSON: No call has been taken by Sam Lotu-Iiga on this bill the Telecommunications (Interception Capability and Security) Bill. In fact no calls whatsoever have been taken on this bill from National Party members other than a brief intervention from the Minister for Communications and Information Technology last night. That is for two reasons. They do not understand it—that is the first reason—and secondly they are not proud of it. They are not proud of it over there because they know that this takes out the balance between protecting the security of New Zealanders and protecting the rights and freedoms of New Zealanders.Sam Lotu-Iiga would not have a clue as to what is in this bill. He is blindly going along with it. He has been told he has got to sit there. He will try to move a closure motion at some point. That is the best he has got to contribute. Well I challenge Mr Lotu-Iiga to stand up get on his feet and say—Peseta Sam Lotu-Iiga: I raise a point of order Mr Chairperson. He asked me to stand up to get on my feet. I am up. [Interruption ] No no—my name is Sam Lotu-Iiga. Thank you.The CHAIRPERSON (Lindsay Tisch): All right. I ask members to pronounce other members’ names correctly.GRANT ROBERTSON: I stand corrected. I would still like to see the member take a call in this debate. [Interruption ] Oh! He is off. He is off because he does not know anything about it. He does not know a thing about it. He is going to find the houses in Maungakiekie that he was looking for—the affordable ones. They are not there.There are several issues to come to now in Part 4 of this bill. The first one that I want to pick up on is one of the points that Clare Curran raised which was around the question of the role of the special advocate and whether or not a court can hear mattersin the absence of the defendant in this. This is covered in the bill essentially under clauses 95 onwards.I want to make reference to what was a very significant report written by the Human Rights Commission. The Human Rights Commission is allowed under its direct reporting function—section 5(2)(k) of the Human Rights Act—to deliver a report to the Prime Minister. It has delivered in its history as far as I am aware only five of these reports so it is a significant step. It chose to deliver a report to the Prime Minister on this bill and on the Government Communications Security Bureau (GCSB) legislation. That was a significant step. Those who have been following the saga of these bills will recall that that was what inspired the Prime Minister to threaten the funding of the Human Rights Commission and to suggest that it should get its submissions in on time. He actually did not understand that this was a separate process and a very serious one.Here is what it had to say about that exact power: “Of further concern however is the fact that where procedural matters involving ‘classified security information’ relating to administration or enforcement of the Act are involved at the request of the Attorney-General a court can receive or hear matters in the absence of the defendant or the defendant’s lawyers.” The Human Rights Commission notes that there is the provision for special advocates but it believes that this breaches the right to natural justice under section 27(1) of the New Zealand Bill of Rights Act.So this bill as my colleague Clare Curran said got a cursory look from the Attorney-General and a rubber-stamp through here. Here is the Human Rights Commission saying that this part of Part 4 breaches the New Zealand Bill of Rights Act. Along with many other issues this is exactly why Clare Curran moved a motion before the second reading to get this bill back to the Law and Order Committee. There is a massive Supplementary Order Paper from the Minister for Communications and Information Technology Supplementary Order Paper 366. There are some significant changes but a lot of issues have been left unchanged. We know from the submissions of agencies like the Human Rights Commission that significant concerns have not been properly dealt with.Interestingly the commission goes on to say in its submission to the Prime Minister: “Despite the opinion of the Attorney-General to the contrary … the Commission considers that the limitation is unjustified and a disproportionate response to the need to protect classified security information in this context particularly since it is relatively unclear as to who will be appointed as a Special Advocate—or if one will be appointed at all.” So that is the situation we now have.I am not a lawyer—my colleague Andrew Little is a lawyer and I am sure he will take a call as we go on through this—but a basic principle of natural justice is that if you are going to be talked about in a court you have the right to be there and be represented. It is a fairly fundamental and basic right and the Human Rights Commission is saying that Part 4 of this bill undermines that. That is an extremely serious allegation and we have heard nothing from the Government to defend that. The Government has given it the rubber stamp and seems to think that that is fine. Well on this side of the Chamber we do not think that it is fine. We believe that it needs to be thoroughly analysed and at the very least defended by the National Government as to why it is prepared to trample on the principles of natural justice in such a way that has led the Human Rights Commission to put this in.The Government may well say—there are no Government members prepared to defend this so let us put up the argument that they might put up. That would be that the special advocate is there to deal with this. Well the appointment—and this is consistent throughout this bill—of the special advocate is right there in the hands of the Government. When it comes to these matters of security and intelligence we on thisside of the Chamber simply do not have confidence that the Government will appoint the appropriate people. We have seen consistently over the term of this Government the appointment of cronies. Obviously the major one of those is the appointment of Ian Fletcher to be the director of the GCSB. That has undermined the confidence of New Zealanders in these agencies. Now we have to accept that anyone who ends up in this process has to go along with the special advocate. We do not even know whether a special advocate is going to be appointed but they have to go along with the special advocate as their person. That fundamentally raises questions of natural justice. That is why the Human Rights Commission raised this.I would ask a Government member to stand up and answer the Human Rights Commission’s concerns. No Government member in this debate has properly responded to the concerns that have been raised. The Minister in the chair the Minister of Defence could stand up and tell us why it is that his Government is prepared to go against the Human Rights Commission which has put out on this bill and on this particular part of this bill one of the very few direct reports that it has done to the Prime Minister. National members should be able to defend that; otherwise it should not proceed because what is the point of having an agency like the Human Rights Commission if it is simply going to be ignored time after time and undermined by this Government? We have not seen any adequate response and on this side of the Chamber we believe that this part in this bill should be opposed in part because of that.Another of the matters that I want to raise on Part 4 is around clauses 70 and 71 which are around the idea that there needs to be a Government-sponsored security clearance for network operators who have 4000 or more customers. I thought that this was a good example of the point that Clare Curran raised about some of the costs and obligations that are being put on companies under this bill. Many of us in the House will have experienced the process of going through a security clearance or indeed being a referee for somebody who has gone through a security clearance. I have to say that it is not always the most reassuring of experiences when that occurs. A person in a long raincoat—Hon Phil Goff: I got through.GRANT ROBERTSON: Well actually Mr Goff says “I got through.” Perhaps members of the Committee may want to consider that that is not that reassuring. But somebody from the SIS comes in a long coat—Hon Trevor Mallard: I never did. I failed.GRANT ROBERTSON: Trevor Mallard failed so the system does work on the odd occasion—Hon Trevor Mallard: That’s right. It meant when I worked at the defence department as a window cleaner I had a pistol-packing guard accompany me all the time.GRANT ROBERTSON: And we have always wanted to keep Mr Mallard under armed guard since then.But the point that I am trying to make is that here is another obligation and another role for a security agency. We on this side of the House have been waiting expectantly for the Security Intelligence Service to be reviewed. It was something that the Government began and then stopped for no apparent reason and without explanation. But here the SIS is involved along with the GCSB in having a role in deciding how network operators are going to behave and what obligations are upon them. The vetting process is the issue that I want to raise. I understand actually that part of the vetting process that the SIS does may have actually been revealed as part of the process of this bill. That in itself is of concern because I would have thought that that was something that the SIS may well want to keep to itself. There will be more to say about that in thefuture but this is just another example in Part 4 of additional costs and additional obligations that are being placed on businesses and network operators.If we look at Part 4 which is essentially a set of clauses that—Ian McKelvie: I can’t believe you’ve got there.GRANT ROBERTSON: No no I have been there the whole time Mr McKelvie. I have been there the whole time. The human rights issues that I raise and that Mr McKelvie has not taken a call on he could get up and respond to. Everything I have been talking about Mr McKelvie is in Part 4 of this bill. If you have read this bill get up take a call and tell me how Mr McKelvie as a member justifies breaching the Human Rights Act. That is in Part 4 and not one of those—