Goff Phil: Crimes Amendment Bill (No 6) — Consideration of Report of Law and Order Committee 
Goff Phil: Crimes Amendment Bill (No 6) — Consideration of Report of Law and Order Committee 
[Volume:609;Page:6240] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I would like to thank the Law and Order Committee for its consideration of and its improvements to this bill. This is an important bill. It amends Part 10 of the Crimes Act which deals with offences against rights of property and it includes the addition of some new computer offences. It also amends Parts 9A and 11A of the Crimes Act to deal with the interception of offences and provisions relating to police interception warrants respectively. 
The bill is intended to modernise and update the property offences and particularly to ensure that they cover property crime involving computer technology adequately. That as the previous speaker said is a quickly changing area. Part 10 of the Crimes Act currently contains over 90 different property offences. Many of those offences have not been updated since the Act was passed in 1961—42 years ago. That part now has gaps and areas of uncertainty in its application to computer-related crime. Last year the Council of Europe approved a convention on cyber-crime which is the first international agreement on computer crime. Once this bill is enacted New Zealand will have comparable offences to those set out in the convention. 
The amendments relating to police interception warrants will help the police to deal with organised crime and at this time when the problem of drug trafficking is rife it is essential that we have those extra powers. Currently the police when acting under an interception warrant can only intercept oral communication and cannot intercept text messages emails or faxes. 
Many of the submissions to the Law and Order Committee raised privacy concerns. The committee carefully considered those concerns and concluded that the safeguards provided in the bill together with the existing statutory safeguards are adequate to ensure that personal privacy is balanced appropriately with the right of the State to protect its citizens. I believe that this bill will strengthen privacy interests by criminalising some activity that is not currently criminal such as intercepting non-oral private communications and accessing computers without authorisation. While it exempts certain State agencies from criminal liability in some circumstances those exemptions relate either to existing powers or to activities that those agencies could presently undertake without specific authorisation. Moreover the exemptions are placed on a clear statutory footing and are hedged with appropriate safeguards. 
I look now at the main changes that the bill makes firstly in relation to property offences. The bill creates a number of new computer offences relating to theft and fraud committed by use of a computer damaging the data and software in the computer system or denying service to an authorised user of the system and selling distributing or possessing computer hacking programs. It also creates the offence of accessing a computer system without authorisation. The bill contains another new offence that of taking obtaining or copying trade secrets. The essence of that offence is wrongly acquiring something such as a document plan model or diagram that is of commercial value with the intention of obtaining financial gain. 
A number of changes are being made to existing property offences. In the offence of burglary the phrase that is well known in the courts of “breaking and entering” is replaced with “entering without authority”. That will remove technical arguments as to what constitutes a “break”. Removing it also means a separate unlawful entry offence will no longer be needed. The offence of blackmail broadens the current offence of extortion by certain threats. The new offence will apply to any threat of disclosure. At present the threatened disclosure must relate to sexual or criminal conduct. The scope of the threat has also been widened to cover a threat to cause serious damage to property or to endanger the safety of any person. That addition will capture certain types of industrial blackmail such as a threat to contaminate a product unless a company does what the blackmailer wants. Regrettably there has been a trend towards that form of criminal activity across the world. 
The offence of obtaining by deception or causing loss by deception replaces the current offence of false pretences. That will cover a broader range of financial benefits than the current offence and the element of causing loss is also new. A number of offences have also been broadened so as to include liability for reckless as well as intentional conduct—for example obtaining by deception or causing loss by deception a false statement by a promoter receiving and money laundering. 
There have been a number of changes to the interception offences and police interception warrants. Currently it is an offence to intentionally intercept any private communication by means of a listening device. The definition of “private communication” however limits that offence to oral communication. The main amendment the bill makes is to extend that definition to any form of private communication. The offence will then cover for example unlawfully intercepting emails and faxes. The police’s interception warrant provisions are similarly amended so that the police will be able to intercept emails and faxes as well as oral communications when acting under an interception warrant. 
I would like to emphasise that all the existing conditions of obtaining an interception warrant must still be complied with. In fact the committee added further safeguards to police interception warrants. A definition of “facility” to allay concerns that that word would have allowed the police to intercept an entire Internet service provider’s communications is the first example of those safeguards. That was never the intention but the amendment makes it clear that the definition of “facility” is to allow the police to specify an email address or mobile phone number for example. 
Two additional requirements are added to the information that the police must include in their annual report to Parliament concerning interception. The first is any use of their emergency powers to intercept communication and the second is the number of interception warrants that do not result in any charges being laid within 90 days following expiry of the warrant. 
The select committee has also added further safeguards to the exemption from the interception offence for telecommunications operators and Internet service providers. An offence of unlawful disclosure has been added to back up those safeguards. The recently enacted Government Communications Security Bureau Act included an exemption from the interception offence for a bureau employee acting under the authority of and in accordance with the Act. That Act also revoked the previous exemption which was by regulation. The passage of that Act means that a number of provisions in this bill can now be omitted. 
I refer the House to Supplementary Order Paper 193 and its replacement Supplementary Order Paper 84. Supplementary Order Paper 193 was issued on 2 October 2001 to make some refinements to the definitions of “intercept” and “deception” and to the requirements that communication providers must meet regarding interception. That Supplementary Order Paper was replaced on 6 May this year by Supplementary Order Paper 84. Many of the amendments on that Supplementary Order Paper are stylistic or are needed to take into account the passage of other legislation. I could use as examples the Telecommunications Act the Sentencing Act the Crimes Amendment Act 2002 and the Government Communications Security Bureau Act. There are however a few amendments of substance and I will finish by mentioning them briefly. 
With regard to the interception offences the definition of “intercept” has been refined. Some words about the parties to the communication have been omitted. They are not necessary as they are already covered in the principal Act. Some rationalisation has been made to the exemptions from the interception offences. Currently the bill has exemptions for telecommunications network operators and for Internet and other communications providers. The latter exemption is broad enough to cover telecommunications providers so there is no need to retain two separate exemptions. The select committee inserted a new offence prohibiting the disclosure of the existence of an interception warrant. As a result of concerns expressed that that offence was too broad the Supplementary Order Paper narrows it. 
Finally amendments have been made to three property offences. As a result of further consideration some rationalisation has occurred in the fraud offence of obtaining or causing loss by deception. As a result of public concerns amendments have been made to two computer offences in order to clarify the criminal intent required. Those are the offence of damaging or interfering with a computer system and the offence of making selling distributing or possessing software for committing crime. 
I commend the bill to the House.