Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeTelecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 17 October 2013. Volume:694;Page:14031. Text is incorporated into the Bound Volume.]Telecommunications (Interception Capability and Security) BillIn CommitteeDebate resumed from 16 October.Part 4 Registration enforcement and miscellaneous provisions(continued)CLARE CURRAN (Labour—Dunedin South): It will be interesting to see whether the Minister in the chair the Minister of Defence is able to answer the specific questions that are put to him during this part of the Telecommunications (Interception Capability and Security) Bill. This is Part 4 of a badly drafted bill that sits alongside the Government Communications Security Bureau Amendment Act to create a surveillance State in New Zealand that ignores and disregards the rights of New Zealanders and that includes unprecedented powers for the Government Communications Security Bureau (GCSB) and for Ministers to interfere in the activities of our digital businesses and our telecommunications networks with no checks or balances. Part 4 of this bill is where the rubber hits the road because this is the part where the expanded regime is set out for the registration of network operators and for the security clearance process of nominated employees within networks. It sets out how they will interact with these GCSB operatives that will work within the networks inside New Zealand how the compliance and penalty regimes for networks will operate and how those compliance networks will operate for those who do not comply.I want to focus on clauses 96 to 98 in Part 4 of this bill for my contribution in this particular speech because this is the part that talks about protecting classified information. It certainly did impact on a number of submitters who put in some verystrong pleas about how this part of the bill was exercised. They did not say that there could not be and should not be a mechanism for the hearing of secret evidence to be presented in court in the absence of a defendant and their lawyer. Where there is a dispute or where there is a problem and if it actually gets to court this is the part where the secret powers can be most concerning if they do not have adequate checks and balances.Tech Liberty NZ which is a significant civil society organisation in our country and has presented on a number of bills before this House in the last almost 5 years around the rights of citizens and the privacy of citizens submitted quite strongly with regard to clauses 96 to 98 which provide for secret evidence to be presented in court in the absence of the defendant and their lawyer: “As a matter of civil liberties and the right to due process enshrined in the Bill of Rights Act we reject the ability of the government to use secret evidence. Secret evidence that cannot be challenged or responded to is a grossoffense to the idea of a fair trial. These provisions should be removed from the bill.” but “If this is to be retained we would expect that the appointment of a special advocate as mentioned in 97(3)(c) would be the barest minimum required to provide any semblance of fairness. This appointment should be mandatory and not at the discretion of the court.”Well I will tell you what the response was to that suggestion. We on this side of the Chamber would probably not take as strong a view as Tech Liberty NZ did on this in the sense that there may be times when there could be secret evidence provided in court but we think that the provision of a check and balance through having a special advocate is an integral part of a system that holds up the highest standards of democracy before this country. Unfortunately this Government as we have heard in the previous debate certainly does not do that. So what was said back was that the officials gave us the advice that those clauses should not be removed and that the New Zealand Bill of Rights Act advice prepared by the Ministry of Justice and by the Attorney-General acknowledged that withholding classified security information during a court proceeding was a limitation on the right to natural justice but given the safeguards put in place such as having a special advocate and the need to keep classified security information confidential it was considered justifiable. Well we will be saying more about the cursory vetting of this bill in the New Zealand Bill of Rights Act vetting process by the Attorney-General later on in the debate on this because we considered that it was just a cursory vetting—a once-over-lightly a rubber-stamping process—and we also contend that the amended bill should have gone back to the Law and Order Committee for another vetting against the New Zealand Bill of Rights Act because of the extensive changes that were made.We were given the advice that the appointment of a special advocate should not be mandatory. If that does not say that there is no serious check and balance being provided in this legislation I do not know what is. On the one hand you have the New Zealand Bill of Rights Act vetting saying that there is a check and balance and therefore it is OK. But on the other hand that check and balance is at the discretion of another process. So it is not there as a right. It is not there as a right for citizens and we contend that this is a serious issue in this bill.We need to talk about costs and the impact of the costs of this bill on companies because when it comes to the compliance regime in Part 4 of this bill this is where significant costs can be realised and may be realised particularly to the smaller companies that we have been warned about through the passage of this bill because of the broad definitions of “network operator” and “service provider” in this bill particularly around what constitutes a network operator. I just want to go back to the letter that we all as members of Parliament received fromNZRise which is a body thatrepresents the New Zealand - owned digital technology sector. This is a group of reputable companies that are trying to be the innovators in our country and we should be listening to them. They say that in practice a small number of businesses—these are the bigger networks the telecommunications companies—will self-identify as network operators and those businesses will notify only a small subset of the decisions covered by the bill. The rest will be in possible non-compliance and as a result can be easily pressured by security agencies. They are warning us that this broad definition of “network operator” could encompass an enormous number of smaller companies that may find themselves in non-compliance and may end up liable under the compliance section of this bill which is overly onerous secretive without checks and balances and could have a huge detrimental effect on our technology sector.They invite us to consider the practical realities of this—that small New Zealand businesses may be likely to be intimidated that the broad powers and expansive wording of the bill could completely undercut New Zealanders’ rights to privacy and protection against unreasonable and disproportionate search. These are obligations that we have contended are onerous. There are not enough checks and balances and the definitions are far too broad in terms of whom they encompass. That is why we have used the phrase “chilling effect” on a number of occasions. We think our technology sector should be driving economic development in this country and we should be giving signals that we want it to drive economic development in this country. What we are doing with this bill is giving it another set of signals that they had better watch out because Big Brother is watching.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—Hon PHIL GOFF (Labour—Mt Roskill): It is a worry that when you have a bill like the Telecommunications (Interception Capability and Security) Bill and you are debating an important part of the bill—which has been introduced under urgency has had the period of time that submitters could make submissions on it curtailed and then has finally come to the Committee where we debate the individual provisions of this bill—that the Minister in the chair the Minister of Defence is not the Minister in charge of the bill and probably does not know what is in it. That would explain why he is not taking the call. But not even the members of the Law and Order Committee who sit in this Chamber have taken a call. The idea of the Committee of the whole House stage is to enable the provisions in this bill to be thoroughly debated. I have heard Clare Curran and I have heard Grant Robertson stand up and raise legitimate questions about Part 4 of this bill and there is no response. There is no response from the Minister in the chair who is not interested and not even listening. There is no response from members on the select committee.This is a really important part. For a start it provides for network providers to be compulsorily registered. We know with this bill and the bill that it actually puts into effect which is now the Government Communications Security Bureau (GCSB) Act that there are intrusive powers. There are intrusive powers against ordinary New Zealanders because an agency in secrecy and without accountability can intrude into their private communications. But Part 4 highlights the other important intrusive powers that this bill provides and those are unprecedented powers in terms of the power of the State to direct private commercial companies to do things that the State wants but the private companies have to pay for. The first requirement in Part 4 is that companies have to be registered. [Interruption] I am sorry?Ian McKelvie: Who paid for your last tax return?Hon PHIL GOFF: I cannot hear the member. He will have to speak louder and more clearly.Clare Curran: Take a call.Hon PHIL GOFF: In fact he should take the call. He should take the call because actually the House has had a gutsful of members of Parliament who interject from their seats but do not have the conviction to actually take the call and debate the legislation.What does this part do? First of all it requires that all network providers be compulsorily registered. Secondly it requires that every one of those companies must nominate an employee who will act on behalf of the State. That employee must get the security clearance to act on behalf of the State. Who pays for that? The State? No I am sorry; the private company pays for it. So you force companies to register you force them to nominate an employee who gets security clearance to do the Government’s work and then it involves a power of the director of the GCSB to require any information or any document that he considers necessary. So the head of the GCSB can demand of a network provider that it provides any information any document that he the head of the GCSB decides is necessary. Do the network providers have any appealagainst that? No. No they do not. They must comply or they are taken to court and they can be fined up to half a million dollars—half a millions dollars—for not complying with these provisions.The enforcement provisions are stringent. The requirements are unusual. You might say that these powers in the interests of national security could be justified. You might argue that. But the onus is on the Government first of all to demonstrate to this House and our country that it is important to have those powers that are exercised by the State and secondly that there are safeguards against the abuse of these powers. I understand and Labour understands that you need security intelligence services. We understand that there are such things as organised criminal activities and terrorist groups that the State may need to be safeguarded against. But where you start is to demonstrate that to demonstrate that these powers are justified.I would have thought that the Government would be prepared to let the critical agencies appear before our select committee—the police the GCSB and the SIS. Those agencies do the work. They could if they wanted have come to the select committee in secret or in private sessions and said that they need these powers because these are the activities that they are safeguarding against. They could have been invited. They could have been invited to appear before the Intelligence and Security Committee to make the same arguments in relation to the GCSB bill which this bill allows to be carried out. But no the Government suppressed the right or the ability of the GCSB the SIS or the police to come before the select committees the democratic institutions of this House. I have not heard one Minister or one member of the National Party stand up and justify why those agencies should not have come before the select committee and said: “This is the reason that New Zealand must have these powers.” That is the starting point. Is there a need for these extraordinary powers? Justify them. That is the role of the Government when it gives extraordinary powers to its agencies. It is to say why. The Government failed and it failed absolutely.Secondly there was the requirement—Jacqui Dean: You sit down and let me take the call.Hon PHIL GOFF: There she goes. She is interjecting from her seat as well so I hope she takes the call. I hope she is going to and then we will get a chance to respond. The other precondition was that when you give these huge powers to the State you ensure that there are safeguards to prevent the abuse of power by those agencies. That is after all why the GCSB bill came before this Parliament. It was because the GCSB was found to have abused its powers in the case of Kim Dotcom and when theKitteridge report came out it was found also to have exceeded and abused its powers against 88 other New Zealanders. So what we know from this is that there must be safeguards against the abuse of power.I want to come back to the safeguards in a minute but the next thing I want to say is this. If we really need these powers because there are organised criminal groups and terrorists out there and we need to intercept their communications does this system put into place by this bill act effectively against criminal organisations and terrorists? I asked the officials that at the select committee. I said: “Aren’t there huge loopholes in this legislation?”. For example an increasing percentage of the population these days are using over-the-top providers likeSkype. IsSkype covered in this legislation? Does it have to have interception capabilities? The answer is no. But the answer is not even no; it is “I’m sorry. We’re uncertain. We’re confused. We’re indecisive. We may put those powers in place but we won’t do it in the legislation; we will do it by regulation. We will do it in a way that does not have to come back to this House. We will do it quietly—or secretly almost. It will not come back to this House.”So first of all you do not putSkype and the over-the-top providers in and then you do not put in the small network providers if they have fewer than 4000 subscribers. This Government finally realised that even if you have got the network providers in because the communications are encrypted and the network providers do not have the means to decrypt the telecommunications messages interception of communications may not be possible. So I asked the officials that question: “Does this bill do what you need to do?” and the answer was: “No there are loopholes that you could drive an articulated lorry through.” If you are a professional criminal organisation you will know where they cannot intercept your communications and you will use those means. So why are we putting all of this effort in when the professional criminal organisations can evade the telecommunications interceptions? And there is no answer to that—there is no answer to that. You might get the dummies who use communications that can be intercepted but the professional crooks or al-Qaeda will not. They know where you can get away with not being intercepted and they will use those routes.What I am worried about with this legislation is that it will not get the real crooks but it will allow these organisations to do what the National Security Agency has done in the United States and what the Government Communications Headquarters has done in the United Kingdom and that is to follow the communications of tens of thousands of ordinary citizens who have no connection with terrorist groups or criminal groups. So we get the worst of both worlds. We do not actually stop the bad guys but we allow the scope for ordinary citizens to have their communications intercepted or recorded in metadata without having adequate protections.I want to talk about why the protections are not adequate. Well for a start the enormous power that exists in this area is—JACQUI DEAN (National—Waitaki): The problem that Labour has in opposing this Telecommunications (Interception Capability and Security) Bill is that it is dancing on the head of a pin trying to find reasons to oppose it. What it is conveniently forgetting is that it was that Labour Government that brought in the telecommunications bill in the first place in 2004. What you have to ask yourself is well did Labour oppose it then? Labour did not oppose it then because Labour brought it in. Did Labour understand the need for national security back then? Yes I believe Labour did understand the need for national security back then and somehow it has had this amnesia about its former position which is not unusual for Labour because flip-flopping is what it does.Labour has conveniently forgotten the need for national security and so now its members are making up arguments that even they do not believe in. Phil Goff knows from his former role as a Minister in the former Government that national security is critical to the running of New Zealand. He knows full well the roles of the Government Communications Security Bureau the SIS and the New Zealand Police and the roles that they must must have under legislation to keep New Zealanders safe because that is what this Telecommunications (Interception Capability and Security) Bill is all about. It is about keeping New Zealanders safe. Labour does not get it. But over this side of the Chamber we do.Hon TREVOR MALLARD (Labour—Hutt South): Well that was a pathetic contribution. I think it is fair to say that there is an old rule in this House that if you do not know anything about it keep your mouth shut because people will think you are a fool. But if you get up there is a likelihood of proving it. And the member just proved that rule.Clare Curran: She’s the chair.Hon TREVOR MALLARD: She was the chair of the Law and Order Committee and the complaint even from the officials was I understand that the member who waschairing the committee just did not bother either reading or understanding the papers that were put in front of her—not that there was that much there; not that the important people who should have given evidence were giving evidence but the member who was meant to be guiding the arrangements through the Law and Order Committee was just so slow and so hopeless that it was an embarrassment to the parliamentary system.I think it is fair to say that it is only in recent days that I have turned my mind to this particular piece of legislation the Telecommunications (Interception Capability and Security) Bill. I have not had any involvement with it before. What has become clear to me is that Part 4 unusually for a bill is where the substance and the mechanisms sit. One looks at the registration system the requirement to register the method of application what is on the registration information the purpose the contents the operation and access and the rest of it.I want to ask the Minister a question as to access to the register. Why is it so secret? Why is all the detail on that register so secret? If we have—Ian McKelvie: Why do you think?Hon TREVOR MALLARD: Well no hang on we are not talking about the private information of individuals that the Government Communications Security Bureau is going after. It is a question of who is registered and on what basis they are registered. Why is that a secret? No no answer. No answer from thenoddies opposite. Their heads all go down and they cannot answer. It is a genuine question. Why can we not know as New Zealanders who are the network operators in New Zealand? Why can we not know? What should be secret about the fact that someone is operating a network here?Ian McKelvie: You’re not much of a detective.Hon TREVOR MALLARD: What? Well the bill is so useless—so useless—that no one can explain. It should be pretty clear to most people who is operating a network. So why keep the fact that they are operating a network and are registered to do so a secret? No explanation. The registrar will not even be able to tell us whether Vodafone is registered or not because that is a secret and there is no access. You are not allowed to access it. It is an offence to have it accessed. It is an offence to reveal.Frankly this is nonsense legislation. I do not want to be too critical of my colleagues and I know that Clare Curran has written a superb minority view on this bill but I do not think that actual question—she might have missed one. Why should we try to keep secret the fact that Vodafone will have to apply? Vodafone has more than 4000 customers no doubt about it and will have to apply for registration as a network operator. Why should we keep secret the fact that Vodafone has gained registration as a network operator? One will be able to tell within 3 months whether Vodafone has got its registration or not because if it has not got its registration the switch goes off.Louise Upston: Are you talking about this particular part of the bill?Hon TREVOR MALLARD: I am talking about Part 4 the changes to the register the security clearance the registration and the certification all of which relate to whether or not a particular operator is able to operate or not and the requirements to keep it confidential.The next point and I think a number of my colleagues are going to be interested in this particular area is the method of nominating employees for clearance. In a slightly jovial way I earlier indicated that even members of this Parliament in their former lives have failed clearance checks in the past. When I cleaned the windows of the defence department as a job when I was a student—I was a window cleaner—I was accompanied by a guard who had a pistol. We are talking about the very early 1970s when pistols were actually relatively unusual in New Zealand at that time. But it was there it was open and it was obvious.The most secret part in those days was the economic espionage section. As an economics student I thought it really interesting that the two books that they had on the shelves because at the time they were studying Viet Nam and the economy of Viet Nam were Samuelson andLipsey which were stage 1 books. They were stage 1 economics books and they were the only books that were on the shelves of the most secret part.But the point that I am making is that people have to submit for vetting; that the operators certainly those that have got more than 4000 customers have to nominate a person or persons who are vetted. The Government Communications Security Bureau (GCSB) goes to work in a way that Grant Robertson described—sorry the SIS I presume will do the vetting on behalf of the GCSB for these particular individuals.I would like also to turn now to clause 75 of the bill. What it says here is that “A network operator must comply with a notice under section 72 or 73 despite anything to the contrary in any deed or contract”—or most important—“or any other enactment.” So the question that I have is that if a court makes an order under another particular enactment and the director of the GCSB issues a notice why should the director of the GCSB override the High Court of New Zealand? Why should the GCSB director a close friend of the Prime Minister have the right to override the High Court or for that matter the Supreme Court of New Zealand? It is just wrong. It is absolutely wrong. It gets the law of New Zealand upside down and back to front.In New Zealand what we are meant to do is have legislation that is interpreted and ruled on by the courts and the Minister and his lackeys do not have the right to tip it over. I do not go a long way back but I rememberFitzgerald v Muldoon because that case established that principle pretty well. That principle is that if you want to change the law if you want to tip over a decision of a court you come to Parliament and do it. You do not have the director of the GCSB write out a bit of paper get it ticked off by one of his mates and override the rule of law in New Zealand by that particular process.Clause 75 also says that the operator must comply even if the compliance notice involves a breach of an obligation of confidence. If that obligation of confidence is established by a court in New Zealand then my view is that it is absolutely wrong for the director of the GCSB to make an order that overrides that court order. It is just wrong. If the GCSB does not like it there are two avenues: you appeal—and appeal again if necessary—and if you do not like the result at any of those—Dr CAM CALDER (National): I moveThat the question be now put.Hon MARYAN STREET (Labour): I rise to speak to Part 4 of the Telecommunications (Interception Capability and Security) Bill. I just want to back up a little bit because we have got a bit of a theme emerging not just in relation to this bill but in relation to a number of the Government’s activities. Although it might sound as if it is recalling some of the echoes of the previous urgent debate it is entirely pertinent to this bill. Mr John Key the Prime Minister said in November 2008: “I expect high standards from my ministers … If they don’t meet the standards I set then obviously I will take action if necessary.” He said: “If they don’t meet the standards I set then obviously I will take action if necessary.” What we have with this bill is a bill that the Prime Minister controls. It is my suggestion that the Prime Minister far from requiring high standards of his Ministers—standards repeatedly broken by some who have been ostensibly punished but then rehabilitated—does not even apply high standards to himself. There is no accountability there is no transparency and there is no appeal in this bill.In this part this is the bit where we are talking about registration enforcement and miscellaneous provisions. One could be forgiven for thinking that it is pretty pedestrian stuff and it is just the mechanics of what has gone on before. But the point is that whathas gone on before in this legislation which sets the context for these mechanical pieces to apply has not had any transparency or accountability or appeal processes within it. What we see repeatedly is a reference to the only person or delegated person who may be able to take action and it is constantly repeatedly either the Prime Minister or the Director of the Government Communications Security Bureau. Here we have a registrar as well within the police. Unfortunately the police were not allowed to present evidence in the select committee process. The Government Communications Security Bureau (GCSB) was prevented from presenting evidence. The SIS was prevented from giving evidence. Immigration New Zealand and the Customs Service were not allowed to give evidence. So that was the whole process by which this offensive at worst and inadequate at best piece of legislation has come back to the House.The follow-up to my quotation from John Key from November 2008—“I expect high standards from my ministers … If they don’t meet the standards I set then obviously I will take action if necessary.”—is that having seen that breached on a number of occasions which have been rehearsed in the previous urgent debate I just want to say that in relation to this bill the Prime Minister being the architect of it the designer of it and the person who gives effect to it has not upheld high standards at all. He has not upheld any expectation that people in this country have of the laws including mechanical things like miscellaneous provisions registration and enforcement that are found in this bill having any comeback to those matters.One of the other quotations I would like to offer comes from the State Services Commission’s code of conduct. It says: “failure to meet expectations causes people to lose trust in Government.”—failure to meet expectations causes people to lose trust in Government. For the first time in this country despite the protestations from members opposite about the original legislation existing and coming in under Labour’s term the GCSB can spy on ordinary citizens—for the very first time the GCSB can spy on ordinary citizens. It was not able to do that under previous legislation. So it does not matter how much Jacqui Dean says “Oh well this was really introduced by the Labour Party.”; this is qualitatively different—qualitatively different. We now have the sanctioned ability for the GCSB to spy on ordinary citizens and that has never happened before. It happened previously in error and instead of correcting the error this Government has gone on to compound it by not getting the provisions right.In Part 4 we do not see any further ability for ordinary people—or in this case network operators in particular—to get the Government or the GCSB or the Prime Minister to revisit any decision. They do not have that ability they do not have that right and they must do what is asked of them at every turn. If we go to clauses 75 and 76 of the bill—and I would like to go on from the point that my colleague the Hon Trevor Mallard made about clause 75—as one goes down that page the miscellaneous provisions only compound the absolute power of this bill. There is no comeback. There is no ability for a network operator or anybody who has had a document seized or a system seized to get that back or to be able to withhold that information. The point remains that in this section we have the nuts and bolts of some of the things that are operational in the bill but it cannot be seen separately from the context in which it rests. That context has not got either the protection of citizens or the protection of citizens’ rights in balance. The protection of citizens—that is the protection of our security—is terribly important but so is the protection of citizens’ rights. Those things are not in balance in this legislation.What we have throughout these rather mechanistic bits of registration enforcement and other provisions is the repeated reference to the Director of the Government Communications Security Bureau who may require information who may seizematerial and who may really examine and cause to have under surveillance the networks that service the information and communication requirements of New Zealanders. In the course of that the rights of New Zealanders to have their communications kept private have been breached. Where there is a security risk certainly there would be a need for the correct authorities through the proper processes which are always transparent accountable and appealable to be able to carry out proper surveillance and proper seizure if necessary. But there is no nod even in the direction of—IANMcKELVIE (National—Rangitīkei): I moveThat the question be now put.STEFFAN BROWNING (Green): In Part 4 of the Telecommunications (Interception Capability and Security) Bill there are a number of particular issues that concern us and there is an overriding aspect of human rights. But right from the start the network operators must register. As we discussed in other parts of the bill we are a little bit unsure how far that goes as to who is a network operator. It is not clearly defined enough or it may come right back to individuals having minimal networks but they might be included as well. But there is an obligation on those people to identify themselves and register. Actually theoretically it could even be people in this room—but hopefully not enforced—having to identify themselves and register. That is how I can best interpret it. On looking through it I cannot find why that is not the case. If that is the situation it is an unbelievably onerous and unfair thing to put on society in New Zealand to be looking and really thinking deeply having to know the law—because of course lack of knowledge is not an excuse around law—and having to find out whether I am a network operator and if so I have got to register with the Government Communications Security Bureau (GCSB) of all people.Then it goes on. What is the information required for someone registering? If you are an operator and you have got employees you have to give the name and contact details of a suitable employee. That is seen by submitters as not being too fair and 2degrees submitted—and there was no change made to the bill from it—and said: “Look the characteristics required of an employee to be cleared should be listed.” Who is a suitable employee? What are the characteristics? There should also be a requirement for the employer to consult with the employee before nominating them and there are some provisions and some discussion around that. But there is no definitive list of characteristics and it all goes back to the GCSB to have the ultimate powers. And yet the operator is to find those suitable employees. The security agencies want the names and the contact details. The employee’s life suddenly becomes fully exposed to the security agencies of New Zealand to look at and to get their clearance. The agencies will be into their family and they will be into everything around the employee as those sorts of clearances go. What rights has that employee got? What rights do their associated family have when this is going on?They also want to know the total number of the network operator’s customers and in the case of an operator that offers retail services an estimate of the total number of end-users across all the services telecommunications services and the networks associated with them. The geographical coverage—OK how powerful is your gear? How far is it reaching? Do all network operators know? Is it hundreds of metres kilometres or whole regions—all of that? They want the lot. The whole lot is to go into this registration. Any particulars of any outsourcing arrangements including the date of the arrangement the names of the parties and the general nature—it is the works that is being required of the operators. Of course we know that the costs associated with setting up capability have to be taken on by the network operators and in our view that is quite an unfair arrangement.I would like to also talk about clause 76. There has been a further change to the Minister’s Supplementary Order Paper 366. The purpose of the change is to put it beyond doubt that the information-gathering provisions cannot be used to obtain information that would have been provided under an interception warrant or lawful interception authority. My interpretation of that is that the sort of eavesdropping that we anticipate through drug surveillance maybe—the sort of surveillance that we anticipate—is to be sieved out somehow from the material that might be covered under this bill and obviously under the GCSB legislation. It is sieving the different parts. How are they to tell the difference between this bit and that bit when they are doing these big grabs of information? I am just wondering how that is going to happen. I think part of that is some of the stuff that needs to be looked at under the Human Rights Act as to what material by whom and how it is going to be avoided.There is another aspect around that. There is a cost thing. The network operators are fully responsible for those costs of setting up but then there are issues around how they retrieve costs for when there is some actual spying going on the spying itself and the operational costs that the operators are able to retrieve. There is some intention there that if there is some argument then there is some arbitration.The piece that I was going to connect with—that sieving and the Human Rights Act—is actually about the liability as well. The liability provision to release operators from being liable is around good faith and as long as somebody is doing the job in good faith there will not be any sort of hitting on them by the people who are affected. You have to think about the 80-odd people who were spied on illegally in the past. They had no idea they have no recourse but this legislation sets it up as well that if the operators—not just the GCSB the SIS the police or whoever else ultimately gets access; the actual operators the neighbours the people in our community who will be providing those provisions—muck it up there is no recourse it seems for those spied on or even for the operators in turn if they are subsequent to other operators because there is an immunity effectively from liability. So that is something that really needs further addressing and there is a Minister in the chair today and there still is time for the Government to make some changes. [Interruption]There is plenty of noise about the thought of making some changes. There are a number of things to have changes made to them but the Green Party as we stated before in the other parts of the bill will be driving to have a full independent investigation of security services: how they are operating; how they have operated in the past; what went wrong; who was being slighted; who in fact was being disadvantaged; whose human rights were being breached; and how we might protect them in the future. So the Green Party will still be driving for that independent investigation to allow a proper community-agreed approach to surveillance interception capability and security. Thank you.Peseta SAM LOTU-IIGA (National—Maungakiekie): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 366 in the name of the Hon Amy Adams to Part 4 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Amendments agreed to.A party vote was called for on the questionThat Part 4 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Part 4 as amended agreed to.ScheduleThe question was put that the amendment set out on Supplementary Order Paper 366 in the name of the Hon Amy Adams to the schedule be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Amendment agreed to.A party vote was called for on the questionThat the schedule as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Schedule as amended agreed to.Clauses 1 and 2CLARE CURRAN (Labour—Dunedin South): Last night I received an email from a librarian who was trying to determine whether the National Library and libraries with over 4000 clients particularly in our large metropolitan centres may be caught up in the definition of a being a “service provider” under the auspices of this bill the Telecommunications (Interception Capability and Security) Bill. Well I can tell you that under the definition of a “service provider” which is “any person who from within or outside New Zealand provides or makes available in New Zealand atelecommunications service to an end-user (whether or not as part of a business undertaking and regardless of the nature of that business undertaking);” the answer would be yes—yes. If it is going to be the libraries that are caught up in the definition of “service provider” in this legislation then who else is going to be caught up in the definition? What other organisations?We have heard through the debate on this bill that there may be schools or networks of schools—even the Government’s new Network for Learning—that may be caught up under the definitions in this bill. There are organisations and services that provide public services for hundreds and thousands of New Zealanders that may get caught up under the definitions of this bill. We are told that this is all pie in the sky. The problem that we have is that these definitions are far too broad and the rights that New Zealand citizens and New Zealand companies may have to operate under a regime that is considered to be democratic are impinged in this bill.If libraries are caught up under the definition of “service provider” there is another chilling effect that this bill has that a Minister has under the powers given to them in this bill. That is at clause 35 of this bill where a Minister could on the recommendation of the Government Communications Security Bureau (GCSB)—with no recourse to public discussion to any evidence provided or to any independent organisation or entity that gives advice to that Minister—decide to deem in any service provider and turn it into a network operator which means that they would be under Part 3 of this bill subject to having the most extraordinary interventions in their organisation.This is all hypothetical but this is the thing with legislation: if the potential is there then it has to be considered possible. Why make the powers available in the bill if they are not able to be used? So if there is the power for a Minister to deem the National Library to be considered a network operator which means that there could be GCSB operatives put in to determine the business of the National Library where else could this be occurring? This is not pie in the sky. This is entirely possible and it has been pointed out to the Government on numerous occasions in recent weeks by New Zealand technology companies that are concerned that they are going to get caught up in the definitions of this bill.That is one of the reasons why under clause 2 of this bill Labour has submitted an amendment which we believe is absolutely important in order for New Zealand citizens to feel reassured about their rights and the rights of businesses under this legislation—that this bill be submitted for Royal assent only if a select committee has reconsidered it and reported that the bill is consistent with the New Zealand Bill of Rights Act of 1990.The problem we have is the cursory rubber-stamp vetting process that this bill went through at the beginning of its passage through this House. It is a very different bill now. It is a bill that is definitely impinging on the rights of New Zealand citizens and on the ability of New Zealand companies to go about their business confident that although there is a regime in place that might be protecting national security it also recognises their rights as entities and provides adequate checks and balances to ensure that the unfettered powers of a Minister are not being exercised to their detriment and to the detriment of innovation in this country.On this basis this bill could affect the National Library of New Zealand it could affect many of the media organisations in this country and as we have heard it could affect many of the small innovative technology companies. I want to read to you the concerns of one of those companies which wrote to the Minister several weeks ago and raised these concerns. It said that its company’s platforms “service New Zealand businesses Government and general public by providing them with internet based services that allow them to communicate electronically. These facilitate communication”—remember this definition is included in the bill—“publishing andbroadcasting in various fields. For example more than 3000 students across New Zealand use theMyPortfolio social learning platform that we support. Under the terms of the current definition(s) anyone who contributes to enabling schools to use that platform (including [this company]) can be argued to be a network operator under the above definition. In fact by enabling schools to useMyPortfolio to facilitate communication with and amongst their teachers and learners it appears to us that the Ministry of Education itself is also a network operator.”The people on the other side of the Chamber may laugh and scoff but the problem that we have is badly drafted law. If this is not the intent of the Minister and if this is not the intent of the Government then why is it not clear in the law? It is bad law and it has not gone through a process of being put against a rights-based set of legislation that we have which actually draws out the problems and the concerns that have been raised by reputable business entities in this country around the impact of this bill have not been properly considered.This is a travesty of law and it should be sent right back to the select committee that it came from. It should be put right up against the New Zealand Bill of Rights Act and there should be another process back through this House. The Minister who brought this legislation before this House should be held accountable for what a dreadful Draconian piece of legislation this is. It is shameful for this country.IAN McKELVIE (National—Rangitīkei): It seems a shame to have to take a call this late in the Committee stage of this bill the Telecommunications (Interception Capability and Security) Bill—Grant Robertson: He’s taking a call?IANMcKELVIE: —yes—but I have sat here and listened to Clare Curran make the same speech four times this afternoon and a number of times yesterday and I cannot believe the absolute nonsense that I have heard. I have heard Mr Goff complain about the fact that the companies have to pay to be part of this. If that is the case why does every other business in New Zealand have to pay for almost everything we do when we transact with the Government? Those members clearly do not get it. The Opposition has talked about putting more checks and balances in place. In one mouthful those members are telling us that the obligations are onerous and in the next they say that they want more checks and balances in place. Yesterday they wanted to insert a technical advisory board. In fact they talked a lot about the technical advisory board. We heard during the submissions—The CHAIRPERSON (Eric Roy): I am sorry to interrupt the member. The time has come for me to report progress.Progress reported.Report adopted.