Power Simon: Telecommunications (Interception Capability) Bill — Second Reading Instruction to Committee In Committee Third Reading 
Power Simon: Telecommunications (Interception Capability) Bill — Second Reading Instruction to Committee In Committee Third Reading 
[Volume:616;Page:12285] 
SIMON POWER (National—Rangitikei) 
: 
 Somewhat deceptively the Committee could be misled to believe that the guts of this bill was in Part 1 but there are some interesting and potentially troubling issues lying deep within the wording of Part 2 and it is worth stepping the Committee through this. We will ask the honourable Minister David Cunliffe to answer this question as he might have a better idea of how its interpretation is to proceed. I would be interested in his views on this issue. 
Part 2 outlines the issues relating to interception duties but more particularly and potentially worrying is the issue around ministerial exemptions in clause 11. As I said earlier in this debate I was not lucky enough to be part of the select committee that considered this bill but it seems to me that the Minister may exempt any network operator from the requirements of section 7—to recap section 7 relates to network operators and the requirement that they have to have the interception capability; essentially the guts of the bill—if the Minister considers there are special circumstances that justify granting an exemption. Somewhat unusually when that type of provision is put in legislation the bill gives an example of where a Minister might consider an exemption. It states: “for example”—not surprisingly given that it is an example—“a pilot trial of a new network or telecommunications service”. 
Members should act with caution anywhere that a ministerial exemption exists. The reason for that is disturbingly contained in clause 11(2) which states that “The Minister may grant the exemption—(a) unconditionally;”. The Minister can unconditionally grant the exemption so that those telecommunications companies do not have to meet the interception capability required or the Minister can impose any conditions he or she thinks fit. “The exemption—(a) must be granted for a period of time that the Minister specifies; and (b) may at any time be varied or revoked by the Minister.” 
In those circumstances we are entrusting one individual with an extraordinary power to exempt telecommunications companies from holding the required capability for those interceptions to occur. At first glance I admit that may not seem significant. But upon closer inspection what is clear from that particular exemption is that we are creating a whole other regime for that Minister to operate within quite independently of the legislation that this Committee is currently debating and will more than likely approve. 
Our obligation as members of Parliament is to create an environment of certain and clear law not least because then the affected telecommunications companies know the boundaries that they are operating within. This legislation states that putting all of that aside it will allow the Minister to do whatever he or she likes. It will allow that Minister to grant exemptions at any point on any conditions and for any length of time that the individual thinks fit. This is no reflection on any one Minister—that would be too easy a target. But what I ask is how appropriate it is as a drafting exercise—and the Minister in the chair the Hon David Cunliffe might have a view on this—to create a legislative framework for telecommunications companies to work within to create certainty at some cost to those companies and then say that putting all of that aside we will let the Minister do what he or she likes; we will create an exemption so wide that the Minister can act outside of the provisions of this legislation should the Minister think that is the right course of action to take. 
On that point I would like to say that this is an opportunity for the Minister in the chair to stand and explain to the Committee why that is. If this legislation is necessary—and apart from the Greens nobody denies that this legislation is necessary—it seems pretty straightforward that if we are to create this interception capability then the very least we can do is give the telecommunications industry a degree of certainty. Effectively this legislation enforces that interception capability on the telecommunications industry. We can say to the telecommunications companies that this is the way in which this regime will operate these are the costs—which we will come to in Part 3 a fascinating part of this bill—that these companies will incur and this is how those costs are recouped. 
But in amongst all of this certainty and the framework that members have worked through by way of select committee and under urgency last night and this morning we give it all away. We give it all away by saying that the Minister can do as he or she pleases with regard to enforcing that interception capability. As a lawyer I ask only one thing from legislation. Actually I ask two things— 
Darren Hughes 
: What’s in it for me? 
SIMON POWER 
: No not at all. I ask only two things. Iwant clarity. I do not want judicial activism. We have seen what that can do and we do not want any more of it. We want clarity and we want certainty. I think members of the New Zealand public are quite entitled to form the view that if Parliament does nothing else—and let us face it; many members of the public question what Parliament does—it must provide clear and certain law. If we are prepared to pass through this Parliament legislation that gives the Minister such a gaping prerogative outside of the provisions of this bill are we serving the telecommunications companies are we serving the war against terrorism are we serving the New Zealand public appropriately? 
I see the Minister nodding. I do not think it is rough to ask him to stand and answer this simple question: “In what circumstances would the Crown envisage exercising or granting that exemption?”. There is a balance between the privacy issues that Mr Locke has raised and the security issues that I Ron Mark and Ken Shirley have raised so I think the Committee is entitled to know in what circumstances the Minister envisages that the Crown would exercise the gaping exemption referred to. I do not think it is an unreasonable request of the Minister to add a small amount of clarity and certainty to the debate around the interpretation of clause 11 in Part 2.