Street Maryan: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeStreet Maryan: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13990. Text is incorporated into the Bound Volume.]Hon MARYAN STREET (Labour): I have been biding my time waiting to contribute to this third part of the Telecommunications (Interception Capability and Security) Bill. There are things that are profoundly and deeply troubling about this. Although I do not know all of the technical ins and outs of the information and communications technology industry I do know about issues of accountability and I do know about issues of responsibility from a Government towards its people.I want to draw attention to clause 44 in Part 3 which is what we are talking about at the moment. This is where the truth comes home—this is where the truth comes home. Clause 44 is simply the definition of “Minister”. One would think that that would be inconsequential but no because it says: “In this Part unless the context otherwise requires”—which it never does actually—“‘Minister’ means the Minister responsible for the Government Communications Security Bureau.” Here we have the intersection the absolute nub of Labour’s opposition to this bill. This is the vehicle for the delivery of the Government Communications Security Bureau Act. This is the delivery mechanism.I want to go to some of the points in this part of the bill that delineate the responsibilities and the powers that have been given to this Minister who is usually the Prime Minister. What we have here repeated throughout this section whether it is clause 46 clause 47 or clause 48 is an absolute reliance on the Minister and the Director of the Government Communications Security Bureau who answers to the Prime Minister the Minister responsible for powers that have no check and balance. Members opposite may wonder why this side of the House is getting so agitated about this bill and it is because there is insufficient regard paid to the rights of citizens in this country the rights to privacy the rights to security certainly but also the rights to be able to check on the power of the executive.I want to talk a bit of technical language to the Minister now in the chair and ask him about certain things that appear in clause 48 which says: “The Director may by written notice exempt a network operator or a class of network operators from any of the requirements in section 45(1) or 47 if the Director is satisfied that the matter to which the exemption relates will not give rise to a network security risk.” So the Director ofthe Government Communications Security Bureau can exempt anybody if they think there is no security risk. Here we have this Government’s attitude towards citizens’ rights encapsulated—this Government’s attitude towards citizens’ rights. “We will make a decision about what is safe for you. We will give powers”—discretionary powers—“to people who have no accountability and for whom there is no comeback for the people of New Zealand.”I want to draw that point out because I would like to ask the Minister in the chair whether clause 48—which is an exemption from clause 47 so please go back and have a look at the previous one Minister—is a disallowable instrument. Tell me is it a disallowable instrument? In other words is it a regulation? Does it come before anybody for scrutiny? The answer Minister in case you are wondering—allow me to help you—is comprised of two letters and not three. The answer is no. It is not a disallowable instrument. All right well the Minister might then say: “Well that is as it should be. Hard decisions have to be made here and the Government has to make them with all the information it has at its disposal and we will not have any check or balance. We will not have any scrutiny. We will not have any transparency. We will not have any appeal rights. We will not have any accountability over this.” [Bell rung] Mr Chairman I have only just started. It is my only contribution.Then we get to clause 54. Well let us have a look at clause 54. It says the Minister may make a direction. The Minister may make a direction and the Minister makes that direction if matters have been referred to him—let us say “him” in this instance being the Prime Minister we have currently—under a previous section which details referral rights. Then it says: “the Minister has considered any submissions from the network operator.”—all right that is not so bad—and “the Minister is satisfied that exercising his or her powers under this section is necessary to prevent sufficiently mitigate or remove a significant network security risk.” So the Minister is going to be responsible for determining where the security risk lies and whether or not there is a security risk caused by this.This bill is silent Minister Foss unless you can prove otherwise to me—and I hope that paper you are looking at is something to do with this because that Minister is the Minister in the chair and I would like him to answer these questions. As I read it the bill is silent as to whether the instruments are disallowable for the purposes of the disallowance legislation. There is an argument that if it is appropriate for Orders in Council to be both disallowable and legislative instruments then it is also appropriate for the powers to make ministerial directions to be subject to the same level of scrutiny and accountability. I do not even know whether the Minister understands what I am saying. The powers to make ministerial directions are the same as Orders in Council.Orders in Council are disallowable instruments or legislative instruments—usually legislative instruments—but they are subject to scrutiny. They are subject to scrutiny by the Regulations Review Committee whether they are disallowable instruments or legislative instruments. But this bill does not say whether any of this is subject to scrutiny. It is inconsistent for this bill to take upon itself rights and powers that may disempower the ordinary citizens of New Zealand from appeal from knowing why the Government has made that decision or for calling the Government to account.The powers to make ministerial directions could be applied to the same effect as the powers to make Orders in Council by making a number of ministerial directions each of which applies to a different entity. So it is entirely possible that the Minister can say that this network is not a security risk and this one is and there is no comeback. There is no comeback for those customers of that particular network that has been declared a security risk whether it is Google or whatever it is—the network that New Zealand citizens subscribe to and use for their internet access and for information—regardingwhether that is a security risk and therefore whether they are susceptible to being cut off as a result.This bill does not provide any democratic protection. It lodges responsibility and powers entirely with the Prime Minister. That in the current circumstances does not give me any cause for confidence but it does not matter. Even if he was the best Prime Minister in the world—which he is not but even if he were—I would still not agree with him being given those powers without transparency without accountability and without any right of appeal.This is not balanced. This legislation does not take into account the rights and requirements of citizens not only to security which we support but also to privacy and to the transparency and accountability of a Government. On all counts this bill fails and that Government does not understand it. New Zealand is not a company to be run like a chief executive officer would run any company. This is a country and it should be run differently from the way one runs a company. I have to say to those members opposite that “there are more things in heaven and earth Horatio than are dreamt of in your philosophy.”